The Supreme Court & Obamacare

[jimmy olsen]

Looks like we're going to get a ruling this year.

Audio files after the link
http://nbcpolitics.msnbc.msn.com/_news/2012/03/26/10866512-court-signals-it-will-decide-constitutionality-of-health-care-mandate

By Tom Curry, msnbc.com National Affairs Writer

Updated at 3:10 pm ET:  After the first day of oral arguments in challenges to the landmark 2010 health care law, it seems clear that Supreme Court will not let a procedural tax issue stand in the way of deciding the constitutionality of the law.

"If there were any members of the court who were looking for an off ramp – who did not want to decide this case now during an election year, this would have been the way to go," said NBC's Pete Williams after hearing the first day's arguments. But "none of them seem to want to take that," he said.

At issue Monday was a law called the Anti-Injunction Act. Does that law require that those who challenge the penalty for failing to buy insurance actually pay the penalty first? That won't occur until 2015, after the insurance purchase requirement takes effect.

The question hinged on the justices accepting the contention that the penalty is effectively a tax.


After hearing Monday's argument, Williams reported that "there didn't seem to be a single member of the Supreme Court that bought that argument."

"I don't believe there's a single justice on the court who believes that it's a tax. End of that question. So we're obviously going to go on to the main event which is the individual mandate which will be argued tomorrow," Williams said.

Monday's argument was the prelude for the main event: Tuesday's two hours of argument over whether Congress has the power to require that almost every American purchase health insurance.

Solicitor General Donald Verrilli told the justices, "This case presents issues of great moment, and the Anti-Injunction Act does not bar the Court's consideration of those issues."

Read the transcript of Monday's oral argument

One justice, Samuel Alito, focused on the apparent inconsistency in the government's argument that the penalty is not a tax, under the terms of the Anti-Injunction Act -- and yet the government also will claim in Tuesday's oral argument that when Congress created the individual mandate and the penalty for failing to buy insurance, it was acting under its constitutional power to tax.

Verrilli said, "Congress has authority under the taxing power to enact a measure not labeled as a tax ... ."

In a question to Verrilli, Alito said, "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 replied, "No, Justice Alito, but the Court has held... that something can be a constitutional exercise of the taxing power whether or not it is called a tax."

Click here to listen to that exchange between Verrilli and Justice Alito

He said, "the nature of the inquiry that we will conduct tomorrow is different from the nature of the inquiry that we will conduct today. Tomorrow the question is whether Congress has the authority under the taxing power to enact it" and the precise words used in the law don't have a crucial effect on that question.

At least two justices, Stephen Breyer and Ruth Bader Ginsburg, seemed to accept the government's contention that the penalty was not a tax, with Ginsburg saying "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"

Since the plaintiffs challenging the ACA had not made the Anti-Injunction Act argument, the justices appointed lawyer Robert Long to argue for the position that no one can file suit against the ACA's individual insurance mandate until after the penalty on those who fail to buy insurance has been assessed.

As soon as President Barack Obama signed the ACA into law, several states and private organization filed suits to overturn it, arguing that the Constitution gave Congress no power to force people to buy insurance.

Long pointed out in his brief that the text of the ACA says the penalty imposed on people who don't purchase health insurance shall be "assessed and collected in the same manner as taxes" -- so it is effectively a tax.

Long also said if Congress had wanted to create an exception to the Anti-Injunction Act in this case it would have done so when it passed the ACA in 2010.

Related: Individual mandate will be in Supreme Court spotlight

He argued that for the Supreme Court to decide now on the constitutionality of the ACA "would be contrary to the policy that courts avoid deciding constitutional issues unless it is necessary to so do."

nd it would premature, he said, for the court to act since it's possible that Congress "could amend or repeal the Affordable Care Act at some point before penalties are assessed and collected, beginning in 2015. An amendment (to the law) could avoid the need for this Court to decide the constitutional issue presented in this case."

But despite those arguments there's tremendous pressure on the high court to resolve the uncertainty over the health care overhaul now -- since many of the provisions of the law are interrelated and the court itself has created the expectation that it will finally settle the constitutional issue.

Recommended: Health care ruling could send fight back to Congress

Arguing the case on Monday for 90 minutes were Long, Verrilli, and former Assistant Attorney General Gregory Katsas, now in private practice, representing the state of Florida and other states and the National Federation of Independent Business.

NBC's Pete Williams contributed to this report.

[Phillip V]

Two-thirds (67%) of Americans want the Supreme Court to overturn some or all of the health care law, according to a poll released today by The New York Times and CBS News.

http://www.nytimes.com/2012/03/27/us/most-americans-want-health-care-law-overturned-or-changed-poll-finds.html

At the heart of the opposition is the individual mandate requiring Americans to obtain health insurance, the least popular part of the bill and a crucial piece at the center of the court arguments, which began Monday and will turn to the mandate on Tuesday.
...
Keeping the law intact is preferred by a mere quarter of those surveyed, largely Democrats, reflecting the deep partisan divide within the overall findings that has persisted since President Obama signed the Affordable Care Act just two years ago.

[Admiral Yi]

"Nice smile, teeth of iron??"  WTF?

[Neil]

Yeah, the individual mandate is horseshit.  Single-payer is the only way to do health care.

[Ideologue]

Concur with Neil.  Individual mandate is stupid.  Why is it so hard?  It wasn't in Canada, the UK, Australia, France, Germany, Austria, probably Poland (FFS).

[Phillip V]

"Nice smile, teeth of iron??"  WTF?

FORCED to Buy

[Razgovory]

Two-thirds (67%) of Americans want the Supreme Court to overturn some or all of the health care law, according to a poll released today by The New York Times and CBS News.

The Supremes had better watch themselves, or they'll get voted out of office.

[DGuller]

Two-thirds (67%) of Americans want the Supreme Court to overturn some or all of the health care law, according to a poll released today by The New York Times and CBS News.

http://www.nytimes.com/2012/03/27/us/most-americans-want-health-care-law-overturned-or-changed-poll-finds.html

At the heart of the opposition is the individual mandate requiring Americans to obtain health insurance, the least popular part of the bill and a crucial piece at the center of the court arguments, which began Monday and will turn to the mandate on Tuesday.
...
Keeping the law intact is preferred by a mere quarter of those surveyed, largely Democrats, reflecting the deep partisan divide within the overall findings that has persisted since President Obama signed the Affordable Care Act just two years ago.

  Wanting to repeal the mandate while keeping the rest of the law is like wanting to defund NASA and have it launch missions to the Moon.

[Razgovory]

Or cutting taxes and expecting tax revenues to increase dramatically.

[Fate]

Or cutting taxes and expecting tax revenues to increase dramatically.

They do.

[Scipio]

I like how there's no punishment for not paying the penalty.  Who's the legislative genius that came up with this shit?

I didn't think there were free rider activists, but I guess they're out there.

[Razgovory]

I keep seeing Pat Boone on TV telling me to harass my senator over this because of the death panels.  I thought Pat Boone was dead.  Damn Hollywood media elites, telling me what to do.

[DGuller]

Why is it so hard?  It wasn't in Canada, the UK, Australia, France, Germany, Austria, probably Poland (FFS).

Two party system would be my guess.  When the first 49.5% are fighting the other 49.5% to the death in culture wars, the 1%ers can be the kingmakers, even if their economic policies only benefit themselves, and actively hurt the other 99%.

[Tonitrus]

Concur with Neil.  Individual mandate is stupid.  Why is it so hard?  It wasn't in Canada, the UK, Australia, France, Germany, Austria, probably Poland (FFS).

At this late a date, politically impossible short of catastrophe.  FDR might have been able to do it, had he survived.

[Capetan Mihali]

I keep seeing Pat Boone on TV telling me to harass my senator over this because of the death panels.  I thought Pat Boone was dead.  Damn Hollywood media elites, telling me what to do.

Pat Boone.