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Continued: Court eager to tackle heart of health care law

  • Article by: ROBERT BARNES , Washington Post
  • Last update: March 27, 2012 - 12:05 AM

WASHINGTON - The Supreme Court launched its historic review of the national health care overhaul Monday and gave every indication that it will issue an election-year verdict on President Obama's controversial signature domestic achievement.

In the first of three days of arguments, the justices sharply questioned three lawyers who came before them, and they appeared ready to cast aside procedural obstacles that might keep them from reaching an ultimate decision on the 2010 health care law.

While Monday's session was more about tax law than the questions of government power that have animated a national debate, Chief Justice John Roberts Jr. at times had to play traffic cop for justices speaking over one another's questions.

Before a packed courtroom, none of the justices endorsed the argument that the court must wait to examine the law because of a 19th-century statute prohibiting challenges of taxes that have yet to be levied. The health care law, which was passed by congressional Democrats and widely denounced by Republicans, prescribes financial penalties for people who do not purchase health insurance by 2014.

That insurance mandate, the heart of the Patient Protection and Affordable Care Act, will be the subject of Tuesday's two-hour oral argument. Monday's arguments shed little light on how the justices view the constitutionality of what supporters call the "minimum coverage provision" and opponents call the "individual mandate."

If the session was lively, it was also as unemotional and technical as one might expect for an examination of the 1867 Anti-Injunction Act; it came as a contrast to the festival-like scene on the court's marble plaza. The courtroom was filled with the law's biggest political supporters and opponents: Attorney General Eric Holder Jr. and Health and Human Services Secretary Kathleen Sebelius on one side, Sen. Jeff Sessions, R-Ala., and Florida Attorney General Pam Bondi, also a Republican, on the other.

The Anti-Injunction Act seemed to offer the justices a way out of making a constitutional decision about the health care law in a presidential election year. A panel of the Fourth U.S. Circuit Court of Appeals had applied the act, which states that "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person." It was designed to ensure that the tax collection necessary to keep the government running was not disrupted by lawsuits.

But neither the Obama administration nor the law's challengers -- Republican officials in 26 states and the private National Federation of Independent Businesses -- advocated that the justices take such a path.

"This case presents issues of great moment, and the Anti-Injunction Act does not bar the court's consideration of those issues," said Solicitor General Donald Verrilli Jr., who is defending the law.

It is somewhat unusual that neither side of a case endorses the view of an appellate court, and so the Supreme Court appointed a longtime practitioner, Washington lawyer Robert Long, to present the argument. For his trouble, volunteer Long received the justices' toughest questions.

"The Anti-Injunction Act imposes a pay-first, litigate-later rule that is central to federal tax assessment and collection," he told the court. "The act applies to essentially every tax penalty in the Internal Revenue Code."

Long had to defend a two-part argument: that the Anti-Injunction Act always barred courts from considering immediate tax challenges and that the penalties included in the health care law are "taxes."

Roberts pointed out that the court did not object in 1937 when the government waived the Anti-Injunction Act and the justices heard a challenge to the recently passed Social Security Act.

Added Justice Sonia Sotomayor: "Isn't the fairer statement that Congress has accepted that in the extraordinary case we will hear the case?"

Justices Stephen Breyer and Ruth Bader Ginsburg focused on the words Congress used in describing the payments. "Here, Congress has nowhere used the word 'tax,'" Breyer said. "What it says is 'penalty.' Moreover, this is not in the Internal Revenue Code 'but for purposes of collection.'"

And Ginsburg pointed out that the purpose of the penalty is to enforce the requirement that Americans secure health insurance.

"This is not a revenue-raising measure, because, if it's successful, they won't -- nobody will pay the penalty, and there will be no revenue to raise," she said.

Early in the litigation over the health care law, the government took the position that the Anti-Injunction Act did bar the challenges. But Verrilli said Monday that while the act does preclude immediate challenges on taxes, the penalties in the law do not qualify.

His nuanced position drew skepticism from Justice Samuel Alito Jr., who noted that the government also claims that the law is constitutional in part because of Congress' taxing power.

"Today you are arguing that the penalty is not a tax," Alito said. "Tomorrow you will be back and arguing that the penalty is a tax."

Gregory Katsas, representing the states and the business group, said the Anti-Injunction Act does not bar all challenges.

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