Supreme Court likely to move forward on health-care ruling

(Melina Mara - The Washington Post)

Opponents and supporters of the health reform law had a rare moment of agreement at the Supreme Court this morning, concurring that the justices could move forward with its review of the Affordable Care Act.

The Supreme Court heard 90 minutes of oral arguments on the Anti-Injunction Act, an 1867 law that says a tax cannot be challenged until someone actually pays it. You can read the full transcript here, and listen to the audio here. The whole idea there was that American citizens shouldn’t be able to use the legal system to cut off the government’s revenue.

The arguments made today pretty much determine whether any of the arguments made later this week will even matter, whether the Supreme Court can rule on the health reform’s penalty for not buying insurance if no one has been fined.

Reading the tea leaves on oral arguments can be difficult. But most of those in the room that I spoke with got the impression that the justices thought they can rule now and don’t need to wait until the penalty takes effect. The reason they wouldn’t have to wait has to do with how the fine is administered, as a penalty (not governed under the Anti-Injunction Act) rather than as a tax (which would fall under the Anti-Injunction Act provisions).

Here’s more from my colleague Robert Barnes, who was inside the courtroom:

Just because the penalty is “being collected in the same manner of a tax doesn’t automatically mean it’s a tax,” said Justice Stephen G. Breyer, “particularly since the purpose of the Anti-Injunction Act is to prevent interference with the revenue stream.” This legal challenge does not interfere with revenue collection, Breyer added.

Justice Antonin Scalia appeared to agree. As a matter of principle, he said, the courts should not be deprived of jurisdiction in cases unless the reasoning is very clear. “I find it hard to think this is clear, whatever else it is,” Scalia said.

Those who watched the arguments came away with the impression that the justices wouldn’t let the Anti-Injunction Act deter a ruling. “I think the justices asked great questions, and it’s clear that the courts believe that this is a penalty, not a tax, and that we can continue on to a ruling,” said Florida attorney general Pam Bondi, one of the 26 state attorneys bringing the case against the Affordable Care Act.

One weird quirk of this provision is that neither the defendants or plaintiffs think it applies: Both sides think the court should be able to rule right now. So the court appointed an outside lawyer, Robert Long, who argued the case on its behalf.

“It’s quite clear that everybody wants to hear the case,” said Zeke Emanuel, a former White House adviser who is now a fellow at the Center for American Progress. “Justice Ginsberg made the correct point that the reason for the Anti-Injunction Act is you don’t want to obstruct revenue flow to the government ... and this provision about the individual mandate isn’t really about revenue. It’s not what this law is intended for.”