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The Supreme Court and health reform: A guide

Expectations are building for a Monday announcement: Will the Supreme Court agree to hear one of the challenges to the landmark health care overhaul that President Obama signed into law last year?

Just this week, the D.C.-based federal appeals court ruled that the law was constitutional, the second appeals court to do so.

But in his decision, Judge Laurence Silberman affirmed what most legal scholars have said: the question of whether the 2010 law is constitutional “will almost surely be decided by the Supreme Court.”

So here’s what’s ahead:

How many challenges to the law are pending before the Supreme Court?

The court has five petitions before it, which ask it to decide the constitutionality of the law. The petitions range from one filed by the Thomas More Law Center, a public interest law firm based in Ann Arbor, Mich., to one by Florida and several other states.

At their closed-door conference on Thursday, the justices considered the pending petitions, but made no announcements or indications toward whether they'll take the case.

What will the justices announce on Monday? Is it certain they will announce anything?

“It is virtually certain that the Court will make an announcement on Monday," said Walter Dellinger, a veteran Supreme Court lawyer who served as acting solicitor general for President Clinton. "They held a private conference that included whether to take some or all of these petitions on Thursday and would ordinarily announce those decisions on Monday.”

Do the justices have a Monday deadline to announce whether they’ll hear one of these health care cases? Could they keep thinking it over for weeks?

“The Court imposes a lot of deadlines, but none on itself,” Dellinger said. “They sometimes decide to ‘re-list’ a petition for the next conference and give it further consideration before announcing a decision. It is possible, but not likely, they would do that with the health care cases if they wanted more time to decide just which combination of cases to take.”

Ian Millhiser, a lawyer and policy analyst at the liberal Center for American Progress, said that the justices may want to consider a point raised by D.C. Circuit Judge Brett Kavanaugh and some of the other appeals court judges: that under a law called the Anti-Injunction Act, “a  taxpayer seeking to challenge a tax law must first pay the disputed tax and then bring a refund suit, at which time the courts will consider the taxpayer’s legal arguments.”

Since no penalties, or taxes, under the health care law take effect until 2015, a decision now on the constitutionality of the law would be premature, Kavanaugh argued.

If the justices do want to consider that argument as part of the case, Millhiser said, they’d need to appoint an outside counsel to argue it since neither the plaintiffs nor the Obama administration support the argument that the Anti-Injunction applies in this case.

What do the supporters of the law contend?

In his decision this week, Judge Silberman, who was appointed to the bench by President Reagan, said the law’s requirement that nearly all Americans must buy health insurance “certainly is an encroachment on individual liberty,” but, he said, it is no more so than other federal laws such as civil rights laws that require restaurants or hotels to serve all customers regardless of race.

He added, “The right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems, no matter how local–or seemingly passive–their individual origins.”

What do opponents of the law contend?

The laws’ opponents say that the individual mandate, the requirement to buy health insurance, is an unconstitutional overreach by the government.

The Constitution grants Congress the power to regulate interstate commerce, they say, but that power doesn’t include compelling people to buy something they don’t want to buy.

Opponents of the law ask: If the court upholds the mandate that people buy health insurance, then what limits would there be on Congress’s power under the Commerce Clause?

If the court does agree to hear one of the health care cases, when would oral arguments take place?

Oral arguments would probably take place sometime early next year.

When would the justices announce a ruling on the health care law?

Probably not until June 2012, at the end of their current 2011-2012 term.