You didn't ask what Blawgletter thinks about the Patient Protection and Affordable Care Act, as its fate dangles in the well of the U.S. Supreme Court courtroom. We'll tell you just the same.
The "individual mandate" part of it (and perhaps the requirement that insurers cover all comers) will vanish in a puff of commerce clause vapor. The rest will limp on. The vote will run 5-4. Before long, one of the five will leave the Court, as will one of the four. And the two new appointees will make up a new majority — one that would have gone the other way.
Mark our words!
Which brings us to a far easier fight, this one over the question of whether a New Deal-era law bars suits more than two years after the day when the defendant "realized' an unlawful "profit" on the purchase and sale (or sale and purchase) of a security within a six-month period.
We say easier because all the justices who voted cast their ballots the same way — against the party (the plaintiff) who claimed that she could wait to sue much more than two years after "such profit was realized", in the words of the statute.
The Court, speaking through the keyboard of Justice Antonin Scalia, thought the claim nonsense. A panel of the Ninth Circuit had ruled the opposite, citing a rule a different panel had set up in 1981. The rule said that the clock couldn't start ticking on the two-year period until the defendant filed a report disclosing the purchase and sale (or sale and purchase) that happened within a six-month period (and yielded a "short-swing" profit).
The Court said:
[The statute] itself quite clearly does not extend the period in that manner. The 2-year clock starts from "the date such profit was realized." § 78p(b). Congress could have very easily provided that "no such suit shall be brought within two years after the filing of a statement under subsection (a)(2)(C)." But it did not.
Credit Suisse Securities (USA) LLC v. Simmonds, No. 10-1261, slip op. 4-5 (U.S. Mar. 26, 2012).