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July 7, 2015

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Supreme Court, attorneys seem eager to debate health care law on first day of arguments

On Day One of the health care debate at the Supreme Court, lawyers and justices alike appeared eager to argue the merits of this case -- indicating they're unlikely to take an available out that says the law is not ready for judicial review.

But their ability to rule rests largely on how the justices answer the central question raised in the first day’s proceedings: Is the health care mandate -- and the penalty for not complying with it -- a tax?

Under the health care law, a penalty is assessed against anyone who doesn’t obey the mandate to buy health insurance. If that penalty counts as a tax, the Anti-Injunction Act says it can’t be challenged until it has been collected -- and since the mandate doesn’t kick in until 2014, the penalty hasn’t been collected yet.

“Congress very specifically said that (the penalty) shall be assessed and collected in the same manner as a tax, even if it's a tax penalty and not a tax,” said Robert Long, the attorney arguing in favor of putting off a decision on the constitutionality of the health care law until 2015 or later. “I think it’s a rather clear indication that the Anti-Injunction Act applies.”

The justices weren’t buying it.

“Its being collected in the same manner as a tax doesn’t automatically make it a tax,” argued Justice Stephen Breyer, one of the more liberal members of the court. “It’s up to Congress within leeway, and they did not use that word ‘tax.’”

“We had a principle that ousters of jurisdiction are narrowly construed,” said Justice Antonin Scalia, one of the more conservative members of the court. “Unless it’s clear, courts are not deprived of jurisdiction, and I find it hard to think that this is clear, whatever else it is.”

The question of the Anti-Injunction Act is one issue on which President Barack Obama and his worst critics agree.

Lawyers for the Obama administration and National Federation of Independent Businesses -- also a party to the lawsuit filed by 26 states, including Nevada, against the federal government -- argued that the court did have jurisdiction and should consider the more meaty questions coming up later in the week on the constitutionality of the mandate to buy health care, the legality of the federal government’s demand that states expand their Medicaid coverage, and whether the health care law’s other provisions can survive if those central issues are found unconstitutional.

“The purpose of this lawsuit is to challenge a requirement -- a federal requirement to buy health insurance. That requirement itself is not a tax,” said Greg Katsas, who represented the National Federation of Independent Businesses. “For that reason alone, we think the Anti-Injunction Act doesn't apply.”

The government agreed.

“Congress has authority under the taxing power to enact a measure not labeled as a tax,” said U.S. Solicitor-General Donald Verrilli. “For purposes of the Anti-Injunction Act, the precise language Congress used is determinative.”

In order for the court to rule on the constitutionality of the health care law, the Obama administration has to argue that the penalties assessed on people who don’t comply with the mandate aren’t taxes -- or else the Anti-Injunction Act applies.

But a key part of their argument Tuesday is that Congress had the right to create a the mandate as it would have the right to create a tax. It’s a more nuanced argument than the one being made by the states and the NFIB, who say the mandate isn’t a tax, it’s the forced purchase of a good; the administration, on the other hand, says it isn’t a tax because it’s a mandate derived under Congress’ taxing power.

“The court has held in license tax cases that something can be a constitutional exercise of the taxing power whether or not it is called a tax,” Verrilli explained Monday.

But it's a subtle enough difference that even the government’s top lawyer started to trip over his own words at one point, when Justice Elena Kagan asked him whether it was illegal for someone not to pay the penalty that they argue is not a tax for disregarding the health care mandate.

“If they don’t pay the tax, they violated a federal law,” Verrilli said. “As long as they’ve paid the tax, they’re in compliance with the law.”

“Why do you keep saying tax?” Breyer interrupted, as the court erupted in laughter.

“If they pay the tax penalty, they're in compliance with the law,” Verrilli said, correcting himself. “Right. That’s right.”

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  1. Day One: In response to the "This is a tax" assertion. Supreme Court leaning: "Much ado about nothing" ~ Wm. Shakespeare.

  2. Not trying to plug another newspaper, but it was super cool to plug my headphones into my computer and listen to the Supreme Court Justices politely discuss the basic issues of "jurisdiction" over this appeal and the "anti-injunction act" concerning the penalty to be collected by the IRS if someone doesn't buy health insurance in 2014 and afterwards. I haven't been in that ancient court room in 35+ years, but by way of the internet it was amazing to be able to picture what the court room looks like and distinguish which justice was which by their voices and accents.

    It was interesting to hear 3 lady Justices taking the bull by the horns and driving the discussion, and to hear Justice Stephen Breyer being up on his Harvard Law Professor high horse, talking down to the lawyers who were arguing this preliminary issue. Justices Roberts, Scalia, Alito and Kennedy made only a comment or two, and Justice Clarence Thomas said nothing, as usual, even though an opinion he wrote was one of the central precedential cases discussed.

    The unique aspect of this appellate case is that virtually all of the Justices who asked questions seemed to lean towards the possibility, under existing Federal case law, that the Federal courts don't yet have jurisdiction over the case right now and must wait until 2014 before taking jurisdiction and acting.

    So if the Supreme Court decides to decide this case on the merits right now, it's because 5 of them they want to, not because they have to.