Supreme Court justices today launched historic arguments over health care with hints that they won’t simply punt the big issues to another day.
While demonstrations and dueling press conferences competed for attention outside, the court’s nine justices bore down on the initial legal question of whether it’s too soon to sue against the Obama administration's signature health-care law.
If questions are clues, the answer appears to be that the lawsuits are ripe for action. This, in turn, means the oral arguments that continue Tuesday and Wednesday on the law’s constitutional validity will ultimately lead to some crucial decisions later this year. “This case presents issues of great moment,” Solicitor General Donald B. Verrilli, Jr., told the court
The 90-minute argument Monday morning had little to do with the merits or even the substance of the 2,700-page health care law passed by congressional Democrats in 2010. Instead, it had much to do with a 19th century law and the meaning of the word “tax.”
The Anti-Injunction Act, first written in 1867, states that legal action cannot be taken to block a tax until the tax itself has been imposed.
The health-care law imposes a fee, to be collected by the Internal Revenue Service at tax time, on U.S. residents who fail to purchase health insurance. This so-called individual mandate starts in 2014, and the first fees would be collected by April 15, 2015.
The arguments Tuesday will focus on whether Congress exceeded its constitutional authority to regulate commerce when it imposed this individual mandate. On Wednesday, the arguments will center on whether Congress went too far in directing states to expand Medicaid coverage.
The argument Monday was more technical: If the penalty imposed on those who don’t buy insurance isn’t a tax, then the Anti-Injunction Act doesn’t apply and the lawsuits can proceed.
“Congress has nowhere used the term ‘tax,’ ” noted Justice Stephen Breyer. “It’s a penalty.”
Justice Sonia Sotomayor agreed that “Congress has not denominated it as a tax, it has denominated it as a penalty.” Justice Antonin Scalia noted that “there’s at least some doubt about the issue” and other justices likewise sounded similar themes.
“This is not a revenue-raising measure,” Justice Ruth Bader Ginsburg said. “If it’s successful, no one will pay the penalty, and there will be no revenue to raise.”
The Obama administration had initially deployed the tax argument in an effort to block the lawsuits, but after losing in one trial officials changed course and now agree with the bill’s opponents that lawsuits can proceed. The Supreme Court assigned attorney Robert Long to make the case that the lawsuits are premature.
“You must pay the tax first, and then litigate,” Long said..
The Congressional Budget Office has estimated the fees will produce between $5 billion and $6 billion annually.
Before, during and after the arguments, about 400 people gathered below the steps outside the Supreme Court. Most were supporting the law. The protest was peaceful, and media at times seemed to nearly outnumber the crowd. About 75 people marched in a parabolic circle holding red white and blue signs saying “Protect the Law,” and chanting “Care for you, care for me, care for every family.”
The supporters were largely organized by a coalition of labor and activist groups. Across the street from the court, 27 supportive talk show hosts formed a “Radio Row” featuring sympathetic guests.
“I don’t know if we’re trying to influence people. We’re trying to inspire,” explained Bob Kincaid, who hosts “Head-On with Bob Kincaid.”
Nearby stood Katherine Prather, a medical student from Kansas City, Mo., with her dog Ellie. “If she has health insurance, so should everyone else,” Prather explained.
The opponents were represented by the Tea Party Patriots, a grassroots conservative group that helped elect dozens of Republicans to Congress in 2010. Ken Campbell flew to Washington from Lincoln, Calif., where he has a ranch. He spent $640 on a round trip ticket so he could spread his message.
“I fear government is going to mandate health care as long as you exit or breathe,” Campbell said. “Next will they tell me to by a Chevy Volt from Government Motors?”