Justices Unlikely To Defer Ruling on Federal Health Reform Law

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On the first day of oral arguments in the Supreme Court case against the federal health reform law, justices seemed supportive of the idea that they can rule on the law now, rather than defer judgment until after its penalties take effect, the Los Angeles Times' "Politics Now" reports (Savage, "Politics Now," Los Angeles Times, 3/26).

The Supreme Court has posted audio transcripts and a written transcript of Monday's proceedings on its website.

Monday's Arguments

The nearly 90 minutes of arguments on Monday focused on whether the tax anti-injunction act -- which states that cases cannot be brought until a plaintiff has paid a tax -- prevents the court from ruling until 2015.

Both opponents of the law and the White House have argued that the law does not apply and have urged the Supreme Court to hear the case now rather than wait.

Arguing for the Anti-Injunction Act

In three minutes of opening remarks, Robert Long, the court-appointed lawyer who is making the argument that the anti-injunction act applies, described the health reform law as a "pay first, litigate later" law.

He noted that the penalty for not purchasing health coverage under the individual mandate carries all the hallmarks of a tax, including that it will be assessed and collected by the Internal Revenue Service (Hanrahan/Radnofsky et al., "Washington Wire," Wall Street Journal, 3/26).

In the first 30 minutes, Long fielded 24 questions from eight of the nine justices (Sherman, AP/Yahoo! News, 3/26).

Here are some of the questions posed to Long:

  • Justice Antonin Scalia asked about HHS' involvement in collecting the penalty, suggesting that it could be different than other taxes.
  • Chief Justice John Roberts asked Long to identify other cases in which the outcome would have been different had the anti-injunction act been applied, noting that the high court has issued a number of different rulings regarding the act.
  • Justice Stephen Breyer questioned whether the act should apply since it is intended to prevent interference with a federal revenue source, which in this case, it is not ("Washington Wire," Wall Street Journal, 3/26). He said, "They called it a penalty and not a tax for a reason" (Klein, "Beltway Confidential," Washington Examiner, 3/26).
  • Justice Sonia Sotomayor noted that penalty was designed to compel U.S. residents to purchase insurance, adding, "If it is successful, nobody will pay" it. Sotomayor also pointed out that there are other provisions in the overhaul that are labeled as taxes. Long responded that he thought it would be a mistake to say that meant Congress intended to apply the act selectively.
  • Justice Ruth Bader Ginsburg stated that the plaintiffs' suit clearly challenges the law's requirement to purchase coverage, noting that the plaintiffs have said they will pay the penalty if it is deemed constitutional. Long responded that he believes the plaintiffs are challenging both the mandate and the penalty.
  • Justice Elena Kagan questioned whether Long is stretching in his interpretation of the health reform law in order to make his argument, to which Long responded that the overhaul "is not a model of clarity" ("Washington Wire," Wall Street Journal, 3/26). Kagan also asked, "Aren't you trying to rewrite the statute, in a way?" The question intimated that Long's position relies on specious interpretations of the high court's past decisions regarding the anti-injunction act, and of the law itself (Baker, "Healthwatch," The Hill, 3/26).

Arguing Against the Anti-Injunction Act

According to "Wall Street Wire," U.S. Solicitor General Donald Verrilli, representing the defendants, faced "less hostile questioning" than Long, which could indicate that the court is likely to rule that the anti-injunction act does not apply in this case ("Washington Wire," Wall Street Journal, 3/26).

Here are a few of the questions posed to Verrilli.

  • Justice Samuel Alito questioned why the federal government is arguing on Monday that the penalty for not purchasing coverage is not a tax, while it is expected to argue that for constitutional purposes it is a tax -- and thus allowed under the Constitution's commerce clause -- on Tuesday. Verrilli responded that the arguments are different because they answer two different legal questions ("Washington Wire," Wall Street Journal, 3/26). Roberts seemed skeptical of that explanation. He asked, "Why would you have a requirement that is completely toothless?" ("Beltway Confidential," Washington Examiner, 3/26).
  • Sotomayor asked whether there are other "collateral consequences" for not purchasing health coverage, other than the penalty, such as if U.S. residents who are on probation will be subject to further punishment for violating their parole. Verrilli responded that the only punishment will be the monetary penalty.
  • Alito also questioned whether there will be an influx of cases from U.S. residents who disagree with whether the penalty should be applicable to them, as has been predicted in an amicus brief filed by former IRS commissioners. Alito asked, "Are they wrong?" Verrilli said they are incorrect in that interpretation ("Washington Wire," Wall Street Journal, 3/26).

Tuesday's Arguments

On Tuesday, the court is slated to hear oral arguments on the constitutionality of the reform law's individual mandate.

Verrilli will represent the federal government, while Paul Clement will represent the states and Michael Carvin will represent the National Federation of Independent Business (Norman, CQ HealthBeat, 3/23).

James Roache PharmD
It would appear Judge Scalia has already made up his mind that the penalty is a tax: referring as follows: "Justice Antonin Scalia asked about HHS' involvement in collecting the penalty, suggesting that it could be different than OTHER TAXES." Folks, recall when Obama's minion Nancy Pelosi argued for passing Obamacare, she had the temerity to state "look we don't even know what's in this bill, LET'S PASS IT AND SORT IT OUT LATER." Recall also, no one was given ample opportunity to even read the bill (including us) let alone debate it in Congress. I believe what we are seeing in the Supreme Court today is subsequent to debauchery of having succumbed to the "dictatorial leadership" in both the Executive and Legislative Branches and is now being dumped on the Judicial Branch to sort out after being rejected by the American populous as evidenced by the multiple State Attorney General's suits. While amusing to watch, it is a cardinal sign of the pathetic times we live in. God help us al

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