The U.S. Solicitor General is asking the Supreme Court to grant it more time to air its views on the Anti-Injunction Act issue during oral arguments on the constitutionality of the healthcare reform law.
The development is important because appellate lawyers call the AIA issue a "sleeper." If the court rules that this is a key threshold issue, it may determine that it cannot rule on the constitutionality of the healthcare reform law until 2015, after which Americans must pay a penalty under the law for failing to get healthcare insurance.
"This highlights the increasing importance of this issue as part of the Court's consideration of the health care law," said George Patton, Jr., an appellate lawyer and a partner at Bose McKinney & Evans LLP, Washington, D.C. and Indianapolis.
He said the federal government has a long-term institutional interest in making sure the AIA will stop other cases from going forward while still allowing the health care case to be decided by the Court. "In essence," Patton said, "the United States is trying to thread the needle."
Patton also said that, as noted in the motion, "The positions of the United States and private parties is also different on severability–the federal government argues that most of the health care law would remain if the minimum coverage provision is struck down, while the private parties say the entire law is not severable from the minimum coverage provision."
The Solicitor General's arguments are contained in a 10-page motion submitted to the Supreme Court this week.
The Supreme Court will hear arguments on the law, the Patient Protection and Affordable Care Act, over a three-day span in late March. The first argument will be March 26.
In general, opponents of the law argue that it is unconstitutional for the government to require citizens to purchase health insurance or pay a penalty.
Other arguments involve whether the government has the authority to require states to pay more for Medicaid in order to finance healthcare for the poor.
Another issue is "severability," whether declaring the mandate to purchase insurance unconstitutional strikes down the entire law, or just the mandate portion.
In its motion, the Solicitor General, Donald B. Verrilli, Jr., said the parties to the case "are in agreement on the allocation of time for the minimum coverage provision and Medicaid issues" during oral arguments in the case, scheduled for late March.
