March 26 2012

Obamacare at the Supreme Court: Day One Preview

Anna Rittgers

In two hours, the Supreme Court will begin the first of three days of oral arguments in U.S. Department of Health and Human Services v. Florida.  The justices will spend 90 minutes hearing arguments on whether the federal Tax Anti-Injunction Act (TAIA) precludes the court from deciding the constitutionality of the individual mandate at this time.

The TAIA prevents lawsuits “for the purpose of restraining the assessment or collection of any tax.”  Out of all the federal courts who heard Obamacare cases, the 4th Circuit Court of Appeals was the only court who actually ruled that the Anti-Injunction Act precluded them from deciding on the issue of Obamacare until after 2014 (when the penalty provisions for failure to obtain health insurance take effect).       

Because neither side brought up the TAIA, The Court appointed attorney Robert Long to brief them on why the TAIA prevents the Court from ruling on the individual mandate.

Long will argue for 40 minutes that the Anti-Injunction Act is a jurisdictional law, and that the penalty provisions of the individual mandate portion of Obamacare means the Court does not have jursidiction over any cases regarding the individual mandate until someone has been injured by the law—specifically, until (1)  that provision of the law takes effect in 2014 (2) a person fails to obtain health insurance as mandated by the law and is assessed a penalty by the IRS, (3) that same person has tried but failed to obtain a refund for the penalty AND (4) the person files a lawsuit that works its way through the court system.  In other words, if the Supreme Court rules that the Anti-Injunction Act applies, the Court will not consider the constitutionality of the individual mandate for at the very least three years, but likely much longer.

Both the government as well as the challengers to individual mandate provision agree that the TAIA does not apply in this case.   The government will have 30 minutes to that the TAIA doesn’t apply to these specific provisions regarding the individual mandate and penalty.  The challengers will have 20 minutes to argue that the purpose of the lawsuit is to challenge the constitutionality of the mandate, not the collection of the penalty;  that the penalty is a penalty, not a tax; and alternatively, that the TAIA is not a jurisdictional law, but a “claims issue on appeal processing” law. 

It is certainly possible that the court could use this as an opportunity to postpone any decisions regarding the individual mandate until after 2014.   However, I believe the Court is hearing arguments on the TAIA issue simply to ensure a thorough consideration of all the issues that have been raised in the circuits.  Since all parties in the Obamacare lawsuits are eager for the Supreme Court to reach the merits of the case, and since both sides make different but very compelling arguments against the applicability of the TAIA, I predict the Supreme Court will find that the Anti-Injunction Act does not apply in this instance, and will move forward to decide the case on the merits. 

As Charlotte said, this is the most important case of our lifetimes.  Stay tuned--after the Court releases the audio tapes of this morning’s proceedings, I’ll return later this afternoon with an analysis of today’s oral arguments and a preview of tomorrow’s oral arguments regarding the constitutionality of the individual mandate.

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