Verrilli said what Congress called the penalty was important for purposes of the Anti-Injunction Act, but not to the greater question of its taxing authority.
The act adopted in 1867 states that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person.” It was designed to make sure that the flow of tax collection necessary to keep the government running was not disrupted by lawsuits.
Justice Breyer questioned attorney Robert Long on whether there were taxes written into the health-care bill during arguments in Department of Health and Human Services v. Florida.
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AUDIO | Justices press Deputy Solicitor General Edwin S. Kneedler on the matter of severability.
THE FIX | The White House's recent strategic shift to fully embrace the term “Obamacare” looks more and more like a bow to political reality.
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A guide to health-care law challenges by day:
MONDAY | Is it premature for the Supreme Court to rule on the challenge to the law's insurance requirement? View story »
TUESDAY | Is the law's insurance requirement constitutional? View story »
WEDNESDAY | If the insurance requirement is ruled unconstitutional, should the rest of the health care law stand? View story »
WEDNESDAY | Is the law's expansion of Medicaid to cover a greater share of the poor constitutional? View story »
As the review began, hundreds of supporters and opponents of the health-care law marched outside the Supreme Court. The demonstrations highlighted the contentiousness of President Obama’s signature domestic initiative, which was signed into law two years ago and continues to galvanize his opponents.
Former senator Rick Santorum (Pa.), a contender for the Republican presidential nomination, made an appearance Monday on the steps of the Supreme Court to campaign against the law — and blast GOP front-runner Mitt Romney. Santorum vowed that, if elected, he would repeal “Obamacare,” which he described as the central issue of his campaign.
“If you really want Obamacare repealed, there’s only one person who can make that happen,” Santorum told reporters. “Obviously, I don’t believe that Obamacare is constitutional,” he added in response to a question.
In the early stages of litigation over the health-care law, the Obama administration agreed that the Anti-Injunction Act barred an immediate constitutional decision. But it dropped that argument and told the Supreme Court that the “penalty” for failure to secure health insurance is not a “tax” for Anti-Injunction Act purposes.
The 26 states challenging the Affordable Care Act (ACA), as well as the private organization and individuals who are party to the challenge, also want the court to act now.
“The purpose of this lawsuit is to challenge a requirement — a federal requirement to buy health insurance,” Washington lawyer Gregory G. Katsas told the court. “That requirement itself is not a tax. And for that reason alone, we think the Anti-Injunction Act doesn’t apply.”
Besides the 4th Circuit panel, the view that the Anti-Injunction Act forecloses a ruling at this time was endorsed by Circuit Judge Brett M. Kavanaugh, an influential conservative member of the U.S. Court of Appeals for the D.C. Circuit.
“Waiting to decide might mean never having to decide,” keeping the courts out of the political fray, Kavanaugh wrote. If there is no change in the law between now and 2015, he said, the constitutional decision could be made then.
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