The U.S. Supreme Court has tapped two veteran high court advocates to brief and argue two key issues in the blockbuster challenges to the new federal health care law.
The justices, in an order issued today, invited H. Bartow Farr III of D.C.’s Farr & Taranto to defend the ruling by the U.S. Court of Appeals for the 11th Circuit that the law’s minimum insurance coverage requirement—the so-called individual mandate—is severable from the rest of the law. Farr, a former clerk to Chief Justice William Rehnquist and a former assistant to the solicitor general, has argued 30 cases in the Supreme Court.
And, Covington & Burling’s Robert Long was asked to make the argument that the Anti-Injunction Act bars the suit by the 26 state attorneys general challenging the individual mandate. Long, a former clerk to Justice Lewis Powell Jr., has argued 16 cases before the justices.
The Court on Monday granted review in three petitions stemming from the 11th Circuit’s decision invalidating the individual mandate. One of the petitions was brought by the United States seeking to overturn the ruling on the mandate, and two others were brought by the state attorneys general and the National Federation of Independent Business (NFIB). The attorneys general won review on their challenge to the law’s expansion of Medicaid obligations and to the 11th Circuit's severability ruling, while the NFIB raised the severability issue. Paul Clement of D.C.’s Bancroft represents the state attorneys general, and Michael Carvin of Jones Day is counsel to the NFIB.
The United States had abandoned the argument that the Anti-Injunction Act barred the health care lawsuits, but urged the justices in its petition to resolve the question. The U.S. Court of Appeals for the 4th Circuit in Liberty University v. Sebelius ruled that the act did bar the challenge because the tax penalty for not purchasing insurance does not take effect until 2015.
The Court has not yet set an argument date, but arguments—slotted for 5.5 hours—are expected in late March.