Day one of the three day marathon of oral arguments challenging the Obama administration’s health care reform law wrapped with lawyers for the Obama administration and challengers finding common ground. Both agree that the Court should hear the case now, rather than deferring a ruling until after 2014 when the individual mandate takes effect.
At issue today was the Anti-Injunction Act, which states, essentially, that any person objecting to a tax must first pay that tax and litigate the issue later. This threshold issue was raised because the first penalties for violating the health care law’s individual mandate do not take effect until 2014 and must be paid on federal tax returns in April 2015. Last year the Fourth Circuit Court of Appeals ruled that courts are powerless to decide the law’s constitutionality because of this “pay first litigate later” requirement.
But the justices, while sparring on this point, seemed inclined to agree with the parties that a decision can (and should) happen now. This apparent concession may be political as much as it is jurisprudential. The case law around the Anti-Injunction Act and whether something is a “tax” or a “fee” is a mess and frankly the Court itself has not been consistent on whether how to read the AIA.
By the end of the arguments it was pretty clear that the justices understood, if not agreed, that the politics of the day require action. What happens to the case law surrounding the AIA as a result remains to be seen.
Tomorrow’s arguments provide the red meat of the appeal when the parties address directly the constitutional challenges to the individual mandate.
Even though today’s argument was largely procedural in that it focused on a jurisdictional question (that is, does the Court have the power to hear the case in the first place) it did offer some glimmers into the curiosity of the Court on the mandate as a whole.
It was almost like they couldn’t help themselves but in attacking the issue of “tax” versus “penalty” questions started coming about the mandate. The justices’ focused in on the challengers’ assertion that the buy-insurance-or-pay-a-penalty approach in the mandate was a way to turn people into lawbreakers in order to challenge the validity of the mandate. The Department of Justice flatly dismissed this argument, promising no one would be treated as a criminal because the only consequence is an assessment of a financial penalty, with no ancillary side effects like a revocation of parole if a parolee did not want to purchase insurance. The point is significant in that is suggests a very engaged Court and likely animated exchanges tomorrow.
Eventually the argument was brought back to the jurisdictional issue at hand and the day closed with a distinct sense of anti-climax. The real show is yet to come and everyone in the room knew it.
Photo from TexasGOPVote.com via flickr.