‘Obamacare’ Arguments Open, Justices Set the Stage for a Crucial Decision

The court seems ready to rule on the constitutionality of ‘Obamacare,’ writes Ben Jacobs.

Dana Verkouteren / AP Photo

In the first of three days of arguments on the constitutionality of the Affordable Care Act, the justices of the Supreme Court asked questions that seemed to indicate they would rule on the key issue of whether or not the so-called Obamacare law’s mandate that citizens purchase health insurance or else pay a penalty is constitutional.

The arguments today in United States Department of Health and Human Services v. Florida centered around an obscure piece of legislation from 1867 that prohibits citizens from suing over a tax prior to its collection. The decision found that a suit can go forward only once the aggrieved party has paid the contested tax and demanded a refund. Since the health-insurance penalty goes into effect on Jan 1, 2014, the Anti-Injunction Act could allow the court to put off deciding the central question until then—averting what would otherwise be a charged decision in late June, in the midst of the presidential election.

With the attorneys for the government defending the mandate and those for the states and business interests arguing against it all agreeing that the Anti-Injunction Act did not apply, the court appointed an attorney, Robert Long of the prominent Washington firm of Covington and Burling, to press the case for why it did.

All eight justices who asked questions of Long, though, seemed skeptical of his argument that bypassing the Anti-Injunction Act would create a precedent that would lead to a wave of tax litigation that would tie up federal courts for years. “What's going to happen is you are going to have an intelligent federal court deciding whether you are going to make an exception,” said Justice Antonin Scalia. “And there will be no ‘parade of horribles’ because all federal courts are intelligent.” Assuming the court does address the central questions instead of putting off that decision until 2014, a decision is expected in late June, in the midst of the presidential election.

Having already agreed to hear the case, the justices seemed reluctant to defer their judgment. Justice Stephen Breyer pointedly asked about the government’s assertion that the penalty was the same as a tax, noting that “Congress has nowhere used the word ‘tax.’” Justice Ginsburg also seemed dismissive of the idea that a penalty was the same as a tax, saying "the Tax Injunction Act does not apply to penalties that are designed to induce compliance with the law rather than to raise revenue. And this is not a revenue-raising measure, because, if it's successful, they won't—nobody will pay the penalty and there will be no revenue to raise."

That line of reasoning could spell trouble for the government’s argument tomorrow.

Despite being defined in the bill as a “penalty” (the word “tax” is never used), Solicitor General Donald Verrilli will argue tomorrow on behalf of the administration that the measure is a tax, since it is collected by the IRS and is intended to raise revenue and thus falls under the Taxing and Spending clause of the Constitution that gives Congress the “power to lay and collect taxes.” He will also argue that the law falls within the enumerated powers of Congress under the Commerce Clause, which gives it the power “to regulate commerce with foreign nations, and among the several states.” In recent years, the clause has become a fiercely contested battleground with many on the right arguing forcefully for a far more limited reading.

Alito pressed the tax question Monday, saying: “Today you are arguing that the penalty is not a tax. Tomorrow you are going to be back and you will be arguing that the penalty is a tax. Has the Court ever held that something that is a tax for purposes of the taxing power under the Constitution is not a tax under the Anti-Injunction Act?” Verrilli answered no.

Assuming the court finds, as its questions suggest, that the constitutionality of the Affordable Care Act is ripe for judgment now, the stage is set for a constitutional Armageddon at tomorrow’s arguments, a final battle between two vastly contrasting views of the scope and power of the federal government. That could lead to the type of expansive decision that the high court is often loath to make, as there’s no evident path to crafting a ruling that would apply only to the Affordable Care Act without more broadly defining the parameters of federal power in ways whose impact will be widespread and difficult to anticipate.