The table now is set for the last chapter in our long (and, to many, excruciating) debate over the constitutionality of the health care reform legislation enacted in 2010. At a conference last Thursday, November 10, the members of the United States Supreme Court voted to consider an appeal of one of the lower court decisions dealing with the constitutionality of the landmark legislation. Oral arguments likely will be scheduled for March, 2012 (ironically around the two year anniversary of the passage of the legislation). In turn, a decision is expected around the end of the Court’s session in June, 2012. Even those astute Americans who have been trying (perhaps without much success) to ignore the political rumblings and stumblings as the presidential primary season dawns acknowledge the potential impact a decision on the health care legislation can have during the midst of a presidential election. This might get really interesting.

The main (but not only) issue to be considered by the Court relates to an allegation that the imposition of an individual mandate under the health care reform legislation (i.e., a requirement that essentially all Americans obtain health care coverage) is unconstitutional. Specifically, the Court has voted to hear appeals from both sides related to a decision issued by a panel from the United States Court of Appeals for the 11th Circuit. That court (in a divided opinion) is so far the only court of appeals that has struck down the individual mandate. However, the panel from the 11th Circuit reversed a holding from the lower district court which ruled that the mandate could not be severed from the remainder of the reform legislation and thus the entire act had to be voided. So far, no court of appeals decision has invalidated the entire bill (although all seem to agree that the individual mandate is a crucial aspect of the reform scheme). Three other courts of appeals, including a very recent decision by the United States Court of Appeals for the District of Columbia, have ruled that the imposition of the individual mandate was within the scope of the constitutional powers of the Congress.

As noted, the individual mandate is not the only issue that will be considered by the Supreme Court. The court also will consider whether the entire health care reform legislation must be declared void if the individual mandate is tossed (despite the fact that there is no split among the courts of appeals on this issue). On this issue, and perhaps in part as a way to ratchet up political pressure, the Obama administration acknowledges that certain universally popular features of the overall legislation (e.g., the prohibition on pre-existing conditions) could not move forward as planned without the individual mandate.

A third issue to be considered is whether Congress exceeded its constitutional powers in expanding Medicaid coverage as part of the health care reform legislation. This claim has not found much support in the lower courts.

Finally, and in some ways most interesting, the Court has agreed to consider whether the issue of the individual mandate is ready for judicial review since the penalties for non-compliance with that mandate, first effective with respect to 2014, would not be imposed for the first time until 2015. Some lower courts have embraced that theory, and using that approach (which this author would refer to as the classic “kick the can down the road ” approach) could allow the Court to defer a decision on the broader constitutionality questions–thus perhaps allowing time for the new Congress to take action to change or even revoke the legislation.

The Court has allocated five and a half hours for oral argument on this case. By comparison, most case usually are handled in just one hour. This alone illustrates the importance of this issue. The ultimate decision has the potential to shape the legacy of President Obama (and obviously could dramatically affect his hopes for re-election). But there seems to be more at stake here. This decision likely will affect future judicial analysis of the scope of Congressional power in potentially significant ways, and will affect the legacy and image of the current Supreme Court itself.

Proving that this debate on health care reform raises both legal and political issues, voters in Ohio last week went to the polls to consider a constitutional amendment that would, if enforceable, exempt Ohio residents from the individual mandate. The Health Care Freedom Amendment (generally referred to as Issue 3) was designed, among other things, to amend the Ohio Constitution to stipulate that no law could impose a fine or penalty on any Ohio resident related to the purchase of health care coverage. The proposal, which most observers feel is unenforceable, was passed by a considerable margin. There seems to be some debate about whether the impact of this proposal was well understood by the Ohio electorate, and opponents did not seem to mount a spirited challenge to its passage. Legal observers believe such a state law cannot in any case supersede federal law, so the impact of this proposal should be extremely limited. However, even though the ultimate legal impact of this proposal, if any, seems uncertain and in fact doubtful, its mere passage indicates that the political fallout of passage of the health care reform legislation still lives. A Supreme Court decision could end the controversy—or just move it to a new level of discussion.

While this author is a mere employee benefits lawyer, some long time observers of the Supreme Court feel that there is a decent chance that the Court could uphold the constitutionality of the health care reform legislation (although that view is by no means unanimous). This view is rooted in decisions by the Court that have taken a rather expansive view of the powers of Congress under the Interstate Commerce clause of the Constitution—the issue that is at the heart of this debate. Even so-called conservative justices (e.g., Justice Antonin Scalia) have supported these previous decisions. In addition, the fact that well known conservative jurists sitting on the lower court panels that have reviewed and ruled in favor of the legislation (with due consideration of Supreme Court precedent as to the breadth of the Interstate Commerce clause) have found the health care reform legislation to be constitutional may well affect the views of the justices. These jurists are known to the justices both professionally and personally. On the other hand, two of the so-called liberal justices (Justices Sonia Sotomayor and Elena Kagan)–while generally viewed as sympathetic to the legislation and its goals–have not had occasion to weigh in on these constitutional issues at the Supreme Court and so their votes might be somewhat unpredictable. In yet another indication of potential uncertainly, there are some who are calling for the recusals of Justice Kagan and Justice Clarence Thomas because of perceived bias, but the Court’s actions this week reveal no indication that these calls are gaining traction. While trying to predict the decisions of the justices on matters of such considerable gravity can be difficult at best (and perhaps just a notch above playing roulette in Las Vegas), there is uncertainly as to how the court will act on this case.

In the interim, the Obama administration is expected to move forward on the issuance (and the refinement) of rules and regulations that would govern the implementation of the health care reform legislation, including the creation of the state-run exchanges that are supposed to be operational beginning in 2014. Our best advice to employers at this point is to move forward with plans for compliance with the legislation (in that regard, certain compliance steps will need to be taken in 2012), but with an eye for possible changes if the legislation is modified or even made void. With careful planning (including careful plan document drafting), employers can best preserve an ability to react positively to any detours we all may encounter down this uncertain road called health care reform.