Today in Washington, the Supreme Court begins the first of three epic days of hearings on the Affordable Care Act (or I guess if Obama is calling it Obamacare now, I might as well). The first day of hearings, which start at 10am ET, concerns whether or not the Court should be able to hear the case at all. At least at this time.
The Anti-Injunction Act, a law dating back to 1867, explicitly states that a tax cannot be challenged in litigation before someone is required to pay it. Since the exchanges don’t begin until 2014, and the monetary penalties for individuals not acquiring insurance don’t begin until 2015, this would allow the Court to sidestep a ruling on the merits for three years. One of the many lower court rulings in the case, from the Fourth Circuit Court of Appeals, stated that the Anti-Injunction Act applied.
This is an outcome that neither side actually wants. The justices had to appoint an outside counsel, a lawyer named Robert Long, to argue for the delay in the ruling under the Anti-Injunction Act. Both the plaintiffs and the defendant in the case will argue that the AIA doesn’t apply and that a ruling should be made immediately. In general, neither side wants the uncertainty hanging over the law for the next three years, during the crucial stages of implementation.
The government is in the strange position of arguing that the individual mandate penalty is not a tax, for the purposes of the Anti-Injunction Act, while arguing (or implying) it is a tax for the purposes of the merits of the argument. That’s not their only argument, but it is one that they have argued in other court proceedings. The other arguments for the mandate have to do with the ability for Congress to regulate interstate commerce, the idea that the “inactivity” of declining to buy insurance has economic impacts, and that the mandate is “necessary and proper” to the functioning of the health care insurance system they came up with. The health care system comprises 1/6 of the US economy and is well within the bounds of Congress to regulate.
Later hearings will tackle that individual mandate argument (tomorrow), as well as whether the mandate is severable (Wednesday) from the other provisions regulating insurers or even the entire law and whether the Medicaid expansion is allowable under the Constitution — also to be argued Wednesday — (a really deadly argument if the Court goes for it, because it would invalidate a number of public programs that operate under the same kind of state/federal structure).
You can read a great rundown of some of the legal arguments in the case from bmaz. He predicts that the Court will rule on the merits (though he thinks that’s more in play that some commentators recognize) and that they will find the individual mandate Constitutional by a 6-3 or 7-2 ruling. As he says, this is an important set of rulings regardless of what you think about Obamacare:
This is about far more than Obama’s questionably cobbled together ACA law; the law is inane in how it soaks Americans to benefit craven insurance companies. Either way, sooner or later, healthcare as constructed and/or mandated by the ACA will die a painful death, but will continue to decimate American families for years, irrespective of the ruling by the Supreme Court on its nominal constitutionality. At some point, single payer, such as “Medicare For All” is inevitable.
However, the pervasive effects of the Commerce/Necessary & Proper Clause determination on the individual mandate, caused by the nightmarishly cobbled together Obamacare, will shape the direction of the Supreme Court in relation to commerce, business interests and, indeed, potentially American life across the board, for decades, if not lifetimes, to come.
That is what is at stake this week. Yes, it is that big. No, it is not that easy or clear cut. I do not know how it all sorts out for sure, but I do think, unlike the vast majority of the political commentators opining in the ether, the Supreme Court understands the consequences for the long run and the gravity of what they are considering. That said, it is still a very political decision for the Supreme beings, and how they calculate that, vis a vis history, is anybody’s guess.
The Supreme Court still lives in the Dark Ages and does not permit television cameras in the courtroom, although in this wired age and with the packed courthouse we may see some unauthorized live-tweeting out of there. There will be an audio recording made available by C-SPAN.
…According to Eddie Vale of Protect Your Care, a pro-Obamacare group, the scene outside the Court is surprisingly one-sided, with 300 supporters of Obamacare and “only five tea party opponents. Literally only 5.” Rick Santorum will show up later today, however.