The U.S. Supreme Court on Monday opened three days of oral arguments over the constitutionality of the insurance requirement embedded in President Obama's landmark health care law with a simple question and an obscure 1867 law.
The question: Does the court even have the right to hear the health care challenge, given that the Anti-Injunction Act prevents federal courts from taking cases where taxpayers are trying to prevent the government from "assessing or collecting" taxes?
The argument against the court's role in the case hinges on justices buying the theory that penalties assessed under the law on those who fail to obtain health insurance by 2014 are tantamount to taxes.
Unfortunately for Washington lawyer Robert Long, who was making the argument, they appeared not to be buying it. At all.
A sample, from Justice Stephen Breyer: "Congress has nowhere used the word 'tax.' What it says is 'penalty.' Moreover, this is not in the Internal Revenue Code but for purposes of collection."
The penalty, Breyer added, is "not attached to a tax. It is attached to a health care requirement." That it's being "collected in the same manner as a tax," he said, "doesn't automatically make it a tax."
After 90 minutes of rapid-fire questions from eight of the nine high court justices (Justice Clarence Thomas remained characteristically silent), the court appeared ready to assert its authority to hear the case. And eager to move on to Tuesday's main event: arguments over the centerpiece of the case, the constitutionality of the 2010 law's mandate that Americans obtain health insurance or face a penalty.
But even though Monday's arguments were at times dominated by in-the-weeds references to tax codes, the morning event provided moments of illumination and humor, as well as fodder for how the justices view their role in the case and how lawyers for both sides will be packaging their arguments in coming days.
Here are four exchanges from Monday's arguments that provide a look into the court and, perhaps, the minds of this week's main players.
Hints At The Arguments To Come
On Wednesday, the justices will hear arguments in challenges to the health care law's expansion of Americans enrolled in the federal Medicaid program.
The 26 Republican governors and attorneys general who have led the appeal of the law were represented Monday by attorney Gregory Katsas. In an exchange with Justice Elena Kagan, he attempted to make the states' "pocketbook" case.
Katsas: [The states] are injured by the mandate because the mandate forces 6 million new people onto their Medicaid rolls. But they are not directly subject to the mandate, nor could they violate the mandate and incur a penalty.
Kagan: Could I just understand, Mr. Katsas, when the states say that they are injured, are they talking about the people who are eligible now who are not enrolled? Or are they also talking about people who will become newly eligible?
Katsas: It's people who will enroll, people who wouldn't have enrolled had they been given a voluntary choice.
Kagan: But who are eligible now.
Katsas: That's the largest category. I think there could be future eligibles who would enroll because they are subject to a legal obligation but wouldn't have enrolled if given a voluntary choice. ... This particular class is the one that gives rise to, simply in Florida alone, a pocketbook injury on the order of $500 to $600 million per year.
Kagan: But that does seem odd, to suggest that the state is being injured because people who could show up tomorrow with or without this law will — will show up in greater numbers. I mean, presumably the state wants to cover people whom it has declared eligible for this benefit.
Cutting To The Chase
U.S. Solicitor General Donald Verrilli Jr., who is defending the law before the court, argued in favor of the high court's hearing the case. The administration is looking for a decision on the highly politicized law by the end of the court's spring term in June.
During an exchange with Justice Ruth Bader Ginsburg over the court's jurisdiction in the matter, Verrilli exhibited a let's-get-on-with-it posture that prompted a wry question from Justice Anthony Kennedy. (The "statute" is the health care law.)
Ginsburg: So ... if we agree with you about the correct interpretation of the statute, we need not decide the jurisdiction.
Verrilli: There would be no reason to decide the jurisdictional issue.
Kennedy: Don't you want to know the answer? (Laughter.)
Verrilli: Justice Kennedy, I think we all want to know the answer to a lot of things in this case. But — but I do — I do think that the prudent course here is to construe the statute in the manner that we read it.
If It's Collected Like A Tax, Is It A Tax?
Attorney Long, who was asked by the court to defend a lower court ruling that the Supreme Court had no standing to hear the health care case, was peppered with skeptical questions.
Here's an exchange with Ginsburg:
Ginsburg: And 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.
Long: ... This one certainly raises — is expected to raise very substantial amounts of revenues, at least $4 billion a year ...
But the justices noted a difference between tax revenue needed for the operation of government and revenue collected in penalties for failure to comply with a health care mandate or other regulations.
Breyer referred to a copyright decision used to defend a before-implementation challenge to the health care penalty mentioned by Katsas.
Breyer: Registration for the copyright register is not the life's blood of anything. Copyright law exists regardless. So the reasoning isn't there.
Can Penalty Be Separated From Mandate?
Katsas argued yes. Chief Justice John Roberts did not agree, asserting that "the whole point" of the health care challenge "is to prevent the collection of penalties."
Here's their exchange:
Roberts: The idea that the mandate is something separate from whether you want to call it a penalty or tax just doesn't seem to make much sense.
Katsas: It's entirely separate, and let me explain to you why.
Roberts: It's a command. A mandate is a command. If there is nothing behind the command. It's sort of well what happens if you don't file the mandate? And the answer is nothing. It seems very artificial to separate the punishment from the crime.
Katsas: I'm not sure the answer is nothing, but even assuming it were nothing, it seems to me there is a difference between what the law requires and what enforcement consequences happen to you. This statute was very deliberately written to separate mandate from penalty in several different ways.
Roberts: Why would you have a requirement that is completely toothless? You know, buy insurance or else. Or else what? Or else nothing.
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