The curtain lifted this morning on the first act of the three-day drama that is the challenge to the Patient Protection and Affordable Care Act (ACA), also known (more colloquially) as just “the health care statute” and (mostly) by opponents “Obamacare.” And what a scene it was. Outside, protesters gathered with megaphones, while inside the courtroom the reporters craned their necks to spot politicians and other influential Washingtonians in the gallery.
The procedural issue before the Court in today’s argument was whether an obscure Reconstruction-era law, the Anti-Injunction Act (AIA), would bar the Court from even considering the merits of the question that most people regard as the main event of the health care litigation: the constitutionality of the ACA’s requirement that virtually all Americans obtain health insurance by January 1, 2014 or face a penalty.
The issue comes up because the AIA prohibits lawsuits to challenge a tax until the tax has actually been assessed; the penalty for the failure to obtain insurance in the health care statute is, the argument goes, a tax for purposes of the AIA.
By the time the ninety minutes of argument were over, it seemed likely that the answer to that question is that the AIA will not stop the Court from deciding the constitutionality of the mandate. But it remains to be seen how the Court will reach this result and move on to consider the mandate on its merits.
The case came to the Court in a somewhat unusual posture, as none of the parties to the case was arguing that the AIA barred the Court from reviewing the challenges. The federal government, as well as everyone challenging the mandate – the group of twenty-six states, the National Federation of Independent Business, and the individual challengers – are all arguing that it does not, although for different reasons. Instead, the Court appointed Robert Long, a well-respected Supreme Court regular, to brief and argue the view that the AIA applies.
Long was the first lawyer to argue this morning, and he faced polite but tough questions during his forty minutes at the podium. The Justices focused primarily on two issues. First, they repeatedly pressed Long on why (as he argues) the bar imposed by the AIA is “jurisdictional,” which means that courts cannot consider any lawsuits challenging the taxes, rather than a “mandatory claim-processing rule,” which limits when and how lawsuits may proceed. This distinction matters because the parties to a case can agree that the claim-processing rule does not apply, so the government could “waive” its ability to block the case through the AIA.
By contrast, if the AIA means that a court does not have “jurisdiction,” it cannot hear the case no matter how badly the parties want it to. And although Long emphasized that the Court in earlier cases had held that language in statutes similar to the AIA meant that the statute was jurisdictional, the Justices – who have been reluctant in recent cases to hold that statutes are jurisdictional – seemed unconvinced.
The second set of questions that Long faced was whether the penalty for failing to obtain insurance is even a tax at all for purposes of the AIA. Justice Breyer expressed considerable skepticism on this point, while Justice Kagan noted that Congress in the ACA had specifically indicated that other fees and penalties did fall under the aegis of the ACA. Why, she wondered, shouldn’t the Court interpret the inclusion of those fees and penalties to mean that Congress did not regard the mandate’s penalty as a “tax” for purposes of the ACA?
Next up at the podium (impressively, without notes) was U.S. Solicitor General Don Verrilli. Verrilli could have found himself in an awkward spot: the government had argued at the beginning of the lawsuits over the health care law that the AIA bar did apply; but it later changed its position and it wants the Court to hold that the AIA does not apply in this particular case, so that the Court can proceed to consider the constitutionality of the mandate on its merits. But at the same time, it wants the AIA bar to continue to apply to basically all other tax challenges. This stance required the government in its brief to play something of the legal equivalent of a game of Twister. Thus, it agreed with Long that the AIA is jurisdictional, but it maintained that the penalty for failure to obtain insurance is not a tax – even though it argues in another brief in the same case that the mandate is constitutional because Congress enacted it using (among other things) its taxing power.
How did Verrilli finesse these points? He began his argument today by reminding the Court that the case presents issues of “great moment.” That tactic proved largely effective, as only Justice Alito even raised the question of the apparent tension between his two arguments regarding whether the penalty is a tax, and no one appeared interested in why the government had changed its position.
That left Verrilli to focus on his argument that the AIA is indeed jurisdictional. When Justice Ginsburg suggested that the Court could avoid deciding the jurisdictional issue by holding that the penalty for failure to obtain insurance isn’t a tax, he agreed, and warned the Court that it would be “very troubling” to hold that the AIA isn’t jurisdictional if it did decide that question.
Finally, Verrilli (agreeing here with Bob Long) vigorously disputed the challengers’ argument that the AIA does not apply on the ground that they were challenging the obligation to obtain insurance rather than the requirement to pay the tax penalty. The only consequence for failing to buy insurance, he reiterated, was that the penalty would be assessed.
The third lawyer to argue was Gregory Katsas, representing several private challengers to the law. With some members of the Court having expressed considerable skepticism about whether the AIA is jurisdictional, Katsas sought to drive that point home. But at least one Justice – Justice Stephen Breyer – appeared sympathetic to his opponents. Breyer told Katsas that “taxes are, for better or worse, the life’s blood of government,” and that Congress in the AIA was simply trying to ensure that federal judges were pre-emptively blocking federal taxes from going into effect willy-nilly.
Several Justices also expressed doubt about the challengers’ efforts to distinguish between the penalty and the mandate. The Chief Justice, for example, asked Katsas (rhetorically), “[w]hat happens if you don’t follow the mandate?” Because “the answer is nothing,” the Chief concluded, “it seems very artificial to separate the punishment from the crime.”
When the Court decided in November to review the AIA question, there was some speculation that the Court might use the AIA as an “out” to avoid deciding the merits of the potentially divisive mandate question in the middle of the 2012 presidential campaign. Today’s argument made clear that is quite unlikely, and that the Court will move full speed ahead to decide the mandate issue that will be the subject of tomorrow’s argument.
The real remaining question is how the Court will get there. The challengers didn’t seem to get much traction with the idea that they are challenging the mandate rather than the penalty, leaving at least two other possibilities: (1) the AIA is not jurisdictional, so that challenges like this one can proceed if the government agrees; or (2) the AIA does not apply because the penalty is not a “tax.” We will find out for sure when the Court issues its opinion in late June; when it does, we will be there to cover it in Plain English.