Justices See No Obstacle to Ruling on Health-Care Law

By Kenneth Jost
Supreme Court Editor, CQ Press
      Justices across the ideological spectrum appeared ready on Monday to overcome a potential jurisdictional obstacle to hearing and deciding a constitutional challenge to President Obama’s health care law.
      The Supreme Court opened an extraordinary six hours of arguments on the Affordable Care Act with a preliminary question whether the case is premature. The issue is whether an 1867 law intended to protect the government’s collection of taxes prevents federal courts from hearing a challenge to the law until after the law goes into effect — and the penalty provision for not buying health insurance kicks in.
      The Obama administration and the law’s opponents alike want the court to rule on the constitutional challenges now. But one of the four federal appeals courts to rule on the various challenges held that the suits were premature because the Anti-Injunction Act generally prohibits legal challenges to federal taxes until after the tax has been paid.
      With neither side taking that view, the Supreme Court followed a recognized but rare practice of appointing a lawyer with no other connection to the case to argue that position. The justices chose Robert Long, an appellate lawyer in Washington and former Supreme Court law clerk, who spent 40 minutes at the lectern Monday fielding mostly skeptical questions from conservative and liberal justices alike.
      Long contended that the act was “jurisdictional” — a legal term of art signifying that a court has no power whatsoever to hear a case even if neither party raises the issue. But he ran into questions from several justices who noted inconsistency in the Supreme Court’s treatment of the law. “We’ve kind of gone back and forth on whether this is a jurisdictional provision or not,” Chief Justice John G. Roberts Jr. said.
      In the same vein, Justice Sonia Sotomayor said she counted “at least four cases” where the court decided to hear a tax-related challenge early after the government had decided not to object. Sotomayor seemed satisfied that courts could use other principles of civil procedure to weed out most premature tax challenges.
      Circumventing the jurisdictional obstacle in a different way, several justices insisted that the penalty for not buying health insurance was not a tax at all. “Congress has nowhere used the word ‘tax,’” Justice Stephen G. Breyer said. “What it says is penalty.”
      Long countered that the law gives the Internal Revenue Service (IRS) the responsibility for collecting the penalty just like other taxes. But Justice Elena Kagan answered by noting that the IRS also collects other penalties for a violation of what she called a “regulatory command.”
      Lawyers for the opposing parties had an easier time at the lectern. Solicitor General Donald Verrilli Jr. stepped around the jurisdictional problem by arguing that the law imposed a “tax penalty,” not a “tax.” At one point, he slipped and spoke of it only as a “tax.” Breyer helpfully corrected him.
      For the challengers, Gregory Katsas, a Washington lawyer and former Justice Department official under President George W. Bush, argued the law was not “jurisdictional” at all and allowed courts discretion to create exceptions for cases such as “constitutional challenges to landmark legislation.”
      The 90-minute session was played to a courtroom packed to capacity as hundreds of supporters, opponents and general spectators massed on the sidewalks outside. The press gallery was expanded to accommodate 117 reporters, with 12 others listening via closed circuit in the ground-floor public information office. Audio tapes were posted on the court’s web site about an hour after the argument ended.
      Roberts thanked Long for “ably” carrying out his assigned role and then adjourned the case until Tuesday morning. That two-hour session is the main event in the case: the constitutional challenge to the act’s provision that virtually everyone have health insurance or pay a penalty. Verrilli will again be defending the law, facing two opponents: former U.S. Solicitor General Paul Clement, representing Florida and other states, and former Reagan administration Justice Department official Michael Carvin, representing the National Federation of Independent Business and individuals contesting the insurance mandate.