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Court: ‘Game on’ with health care

By Jay MacDonald ·
Monday, March 26, 2012
Posted: 3 pm ET

With protesters from both sides of the health care reform debate gathered at its steps, the Supreme Court signaled "game on" Monday in the first of three days of hearings over constitutional challenges to President Barack Obama's landmark Affordable Care Act.

At issue in the opening session was whether the Supreme Court's review of the 26-state challenge is itself premature. Under the 1867 Anti-Injunction Act, judges cannot rule on challenges to federal taxes until the taxes have actually been levied. In the case of the Affordable Care Act, the first penalties for those who fail to purchase health insurance under the individual mandate would not be imposed until 2015.

Supporters, opponents want a decision now

It was the one point on which supporters and opponents agree – they want health care reform decided now. Lacking an advocate, the court appointed attorney Robert Long to argue for the arcane 1867 law. But judging by the skepticism he received from the bench, the justices seem intent upon pressing ahead with the scheduled review of the Affordable Care Act.

Long argued that the penalty for those who fail to purchase health insurance beginning in 2014 amounts to a tax that would raise $4 billion annually, and thus any challenge to it should be delayed under the Anti-Injunction Act until such a tax has been assessed.

But the justices were dubious. Justice Stephen Breyer pointed out that Congress never mentions the word "tax" in the ACA, preferring the term "penalty." Justice Ruth Bader Ginsburg added that if the act works as intended, it would raise no revenue because people would purchase health insurance.

Penalty vs. tax

Justice Samuel Alito punctuated the discussion by pointing out that, while the administration insists that a penalty does not a tax make, Congress based the individual mandate and penalty for noncompliance specifically on its constitutional power to tax.

"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," Alito told Solicitor General Donald Verrilli Jr., representing the federal government.

Verrilli's response promises fireworks for Tuesday's session, when the court considers the constitutional challenge to the individual mandate itself. "The inquiry that we will conduct tomorrow is different from the nature of the inquiry that we will conduct today," he said.

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