WASHINGTON—The Supreme Court today agreed to decide whetherrequiring Americans to buy health insurance is constitutional.

Oral arguments will be held in March, and a decision is expectedby June, just as the critical electioneering for the nextPresident, the entire House and one-third of the Senate begins.

However, in a sweeping decision, the court also agreed to decidea procedural question that could allow it to postpone dealing withthe core issue for several years.

It did so by agreeing to review whether the insurance-mandatepenalties included in the Patient Protection and Affordable CareAct are a type of tax that can only be challenged after it iscollected, rather than before.

If the court determines that it is premature to deal with thecore issue, the court would not have the legal power to considersuch a challenge until people are required to pay that tax startingin January 2014, legal scholars say.

Lower courts ruled for the Obama administration on this issue,especially the Fourth U.S. Circuit Court of Appeals, which ruled2-1 that it did not have jurisdiction to decide theconstitutionality of the law because the Anti-Injunction Actrequires the person to pay the tax first, seek a refund, and inlater proceedings raise the constitutional issue. This courtsidestepped dealing with the mandate issue, saying it waspremature.

Opponents of the legislation and who believe the mandate to buyinsurance is unconstitutional have voiced concern that the HighCourt could sidestep the critical mandate this year by supportingthe 4th Circuit on the procedural issue.

Challengers, including 26 states and most conservatives, viewthe insurance requirement as an unprecedented intrusion onindividual liberty. They contend that Congress cannot use itsinterstate commerce powers to regulate citizens who choose not toparticipate in the health insurance market.

The core constitutional issue revolves around the CommerceClause of the constitution.

The court also agreed to hear the challenge of 26 states of thehealth law's expansion of Medicaid, the combined federal/stateprogram that subsidizes health care for low-income Americans.

George T. Patton, Jr. a partner at Bose McKinney & Evans LLPin Indianapolis and Washington and an expert in appellate law said,“In my view, it is no surprise that the U.S. Supreme Court grantedreview given that a federal appellate court (the Eleventh Circuit)struck down an act of Congress as unconstitutional, other federalappellate courts (the D.C. Circuit and Sixth Circuit) upheld thelaw as constitutional, and yet another federal appellate court (theFourth Circuit) found that there were jurisdictional problems withdeciding the constitutionality now.”

He said the five and half hours of oral argument granted by theU.S. Supreme Court will allow for a full airing of the legalissues. “This amount of oral argument is much more than the regularhour per case usually set,” Patton said.

Then again, Patton noted, the Court granted three petitions. “Itwill be interesting to see what order the Court sets the cases fororal argument,” he said.

He cited comments by Lyle Denniston, a reporter and non-lawyerwho has been covering the Supreme Court for 52 years, that, “Theallotment of five-and-a-half hours for oral argument appeared to bea modern record; the most recent lengthy hearing came in a majorconstitutional dispute over campaign finance law in 2003, but thatwas only for four hours.”

Patton cited the amount of time the Court has allotted to thevarious issues, perhaps implying the order and logic tree of theoral arguments:

• Two hours of argument on the constitutionality of theindividual mandate;
• One and half hours on severability of the individual mandatefrom the rest of the law;
• One hour on jurisdiction given the Anti-Injunction Act;and
• One hour on constitutionality of the expansion of Medicaid forthe poor and disabled.

In another note of caution, Beth Mantz Steindecker of WashingtonAnalysis, who advises institutional investors and hedge funds, saidlast week in an investment note dealing with the Decision of theCourt of Appeals for D.C. Circuit upholding the mandate that theSupreme Court is likely to uphold the constitutionality of theindividual mandate by the end of June 2012 .

However, she said, “Irrespective of what the Supreme Courtultimately does, we believe that the bigger game-changer for thislaw is the outcome of next November's elections.

Specifically, she said, a GOP-controlled Congress may work withPresident Obama on deficit-reducing modifications and designchanges, such as an alternative to the individual mandate.

“If there is a Republican sweep, however, they are expected topursue a 'repeal and replace' strategy while keeping some of themore “popular” provisions, Mantz-Steindecker said.

“No matter what, it seems that the health reform law is likelyto look different than originally designed by the potential date ofimplementation,” she concluded.