Starting at 10:00 AM on Monday, March 26th, the United States Supreme Court will begin to hear the healthcare case issues in oral arguments that challenge the Patient Protection and Affordable Care Act. There will be an unprecedented six hours of oral arguments on the healthcare case, spread over three days.

In our previous post, we discussed the advocates on both sides of the healthcare case. In addition we have the nine Justices, who are generally classified as four conservatives, four liberals and one swing vote, Justice Anthony Kennedy.

In this post we will outline the four healthcare case issues that the Court will be addressing in the oral arguments. We’re not going to comment on the individual issues involved, only outline the facts of the cases. There will be plenty of time for commenting later.

The initial 90-minute session will focus on whether court action is premature because no one has as yet paid a fine under the law. On this issue the Court will need to determine whether the Tax Anti-Injunction Act (AIA), which dates back to the 1800s, precludes review of the ACA until after 2014.

The Court may decide whether the failure to comply with the “individual mandate” equates to a tax penalty. If it does, the Court’s consideration of Supreme Court Oral Arguments schedulethe “individual mandate” would fall under the Tax Anti-Injunction Act and could preclude the federal courts from hearing the case until after the law goes into effect and after a prospective plaintiff has paid a tax penalty to the IRS in 2015.

When they considered this issue, the Circuit Courts handed down contradictory decisions. The Fourth Circuit ruled that the “individual mandate” imposes a tax penalty, falling under the Tax Anti-Injunction Act and so that court did not reach the constitutional issues. However, two other Circuit Courts decided that the Tax Anti-Injunction Act does not preclude the federal courts from deciding the constitutionality of the “individual mandate.”

The second issue that will be addressed is scheduled for a two-hour session on Tuesday. This issue asks the central question if Congress overstepped its authority by requiring Americans to purchase health insurance by 2014 or pay a penalty.

The government will argue that it has the power under the Constitution’s Commerce Clause. The Supreme Court has interpreted the clause as providing Congress wide latitude to regulate activity that, when viewed cumulatively, has a substantial effect on interstate commerce.

Americans purchase more than $2.5 billion in health insurance annually, so it has a serious impact on interstate commerce. The government will also argue that Congress derives authority to mandate health insurance coverage from its constitutional power to make laws that are “necessary and proper” for executing other powers.

The challengers will argue that requiring the purchase of a product, such as health insurance, from a private entity is unprecedented and an intrusion on individual liberty. They will also argue that regulating “inactivity,” the decision not to obtain health insurance, is outside Congress’s power to regulate interstate commerce.

The third issue that the Court will examine is the severability of the individual mandate if the Court finds it unconstitutional. In essence, can the healthcare law remain viable if there is no means of funding it?

The government argues that only two other portions of the law would also have to fall if the mandate is invalidated: the requirements that insurers cover people with preexisting conditions and not charge them higher premiums. Without a mandate, these requirements would become infeasible. Some authorities argue that Congress, not the Court, should decide these questions.

Finally, the Court will consider if the Medicaid expansion is constitutional and whether states can be required to comply with it in order to remain eligible for federal Medicaid funds. This is a Federalism issue. The principal point of contention is whether the Federal government can “commandeer” or “coerce” state functions in a way that exceeds federal authority. Although the lower federal courts have consistently rejected this argument, the Supreme Court has opted to review it.

The government will argue that states operate Medicaid programs voluntarily, contributing their own funds in order to receive federal funding, and that Congress has broad power under the Constitution’s Taxing and Spending Clause to require state compliance as a condition of receiving federal funding.