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| The US supreme court healthcare hearing: panel opinion | The US supreme court healthcare hearing: panel opinion |
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| Scott Lemieux: 'I'm confident that the court will rule on the merits' | Scott Lemieux: 'I'm confident that the court will rule on the merits' |
| The constitutional challenge to the Affordable Care Act (ACA) presents a real chance that the US supreme court will strike down a central part of an incumbent administration's agenda since 1936. For this reason, audio transcripts were quickly issued to the public, and many politically interested people will hear an oral argument at the supreme court for the first time. | The constitutional challenge to the Affordable Care Act (ACA) presents a real chance that the US supreme court will strike down a central part of an incumbent administration's agenda since 1936. For this reason, audio transcripts were quickly issued to the public, and many politically interested people will hear an oral argument at the supreme court for the first time. |
| Rather than juicy arguments about the fundamental powers of the federal government, however, those who listen to Monday's argument will hear arguments that are more like stale Wonder Bread liberally studded with Ambien: technical arguments about jurisdiction and the enforcement of tax law. | Rather than juicy arguments about the fundamental powers of the federal government, however, those who listen to Monday's argument will hear arguments that are more like stale Wonder Bread liberally studded with Ambien: technical arguments about jurisdiction and the enforcement of tax law. |
| The court asked to hear arguments about whether its jurisdiction to hear the challenge to the ACA was prohibited by the Anti-Injunction Act (AIA). The AIA, in essence, requires that in cases of a challenge to a tax law, one must pay the tax and then seek an administrative remedy before they can litigate. If the individual mandate to purchase health insurance in the ACA is viewed as a tax, the court is arguably denied the authority to hear the case until the mandate goes into effect in 2014 and someone challenges the legislationafter paying the tax. | The court asked to hear arguments about whether its jurisdiction to hear the challenge to the ACA was prohibited by the Anti-Injunction Act (AIA). The AIA, in essence, requires that in cases of a challenge to a tax law, one must pay the tax and then seek an administrative remedy before they can litigate. If the individual mandate to purchase health insurance in the ACA is viewed as a tax, the court is arguably denied the authority to hear the case until the mandate goes into effect in 2014 and someone challenges the legislationafter paying the tax. |
| This jurisdictional argument is not powerful but also not indefensible. Some people have argued that the court might seize the opportunity to dodge a politically volatile case. I've been skeptical of this argument. The contemporary supreme court does not have a pattern of avoiding politically divisive cases; indeed, it has an extensive history of weighing in on such questions. It does have something of a pattern of avoiding cases when a court believes that a decision some justices would prefer on the merits would be extremely unpopular, or ignored by other political actors – but these conditions to not apply to this case. | This jurisdictional argument is not powerful but also not indefensible. Some people have argued that the court might seize the opportunity to dodge a politically volatile case. I've been skeptical of this argument. The contemporary supreme court does not have a pattern of avoiding politically divisive cases; indeed, it has an extensive history of weighing in on such questions. It does have something of a pattern of avoiding cases when a court believes that a decision some justices would prefer on the merits would be extremely unpopular, or ignored by other political actors – but these conditions to not apply to this case. |
| Nothing in Monday's oral argument dissuades me. Normally, one would expect the Obama administration to support the jurisdictional argument, because this would ensure that, at a minimum, the most popular provisions of the legislation go into effect in 2014. But since making the argument would require the administration to define the individual mandate as a "tax", it, in fact, sided with the challengers of the ACA to argue that the court does have jurisdiction. | Nothing in Monday's oral argument dissuades me. Normally, one would expect the Obama administration to support the jurisdictional argument, because this would ensure that, at a minimum, the most popular provisions of the legislation go into effect in 2014. But since making the argument would require the administration to define the individual mandate as a "tax", it, in fact, sided with the challengers of the ACA to argue that the court does have jurisdiction. |
| So the court appointed an independent advocate, Robert Long, to argue against the court's jurisdiction. The court, however, peppered Long with hostile questions – most ominously, from both sides of the ideological spectrum. Even Steven Breyer, whom one might expect to be particularly sympathetic to a claim that the supreme court should refuse jurisdiction, appeared to regard the Obama administration's claim that because the mandate is enforced through what it calls a "penalty", rather than a "tax", that the AIA does not apply. | So the court appointed an independent advocate, Robert Long, to argue against the court's jurisdiction. The court, however, peppered Long with hostile questions – most ominously, from both sides of the ideological spectrum. Even Steven Breyer, whom one might expect to be particularly sympathetic to a claim that the supreme court should refuse jurisdiction, appeared to regard the Obama administration's claim that because the mandate is enforced through what it calls a "penalty", rather than a "tax", that the AIA does not apply. |
| To my mind, it was never very plausible that the court would hold several hours of oral argument spread over three days (as opposed to the usual one hour) just to dismiss the case on technicality, particularly when both of the main parties agreed that the court had jurisdiction. After Monday's argument, I'm even more confident that the court will rule on the merits. | To my mind, it was never very plausible that the court would hold several hours of oral argument spread over three days (as opposed to the usual one hour) just to dismiss the case on technicality, particularly when both of the main parties agreed that the court had jurisdiction. After Monday's argument, I'm even more confident that the court will rule on the merits. |
| Scott Lemieux is a professor of political science at the College of Saint Rose, Albany, New York, and blogs for Lawyers, Guns and Money | Scott Lemieux is a professor of political science at the College of Saint Rose, Albany, New York, and blogs for Lawyers, Guns and Money |
| Martha Davis: 'Justice Alito noted the irony of the US government's position' | Martha Davis: 'Justice Alito noted the irony of the US government's position' |
| The US supreme court began its healthcare marathon today by hearing 90 minutes of oral argument on the question of whether the federal Tax Anti-Injunction Act bars consideration of the pending constitutional challenges to the healthcare law. According to the 1867 Anti-Injunction Act, no suit can be brought to enjoin collection of a tax in advance of payment. Instead, taxpayers must pay first and litigate later. Since the Affordable Care Act does not require any payments until 2014, a ruling that the Tax Anti-Injunction Act bars judicial review would postpone a resolution of the healthcare law's constitutionality for several years. | The US supreme court began its healthcare marathon today by hearing 90 minutes of oral argument on the question of whether the federal Tax Anti-Injunction Act bars consideration of the pending constitutional challenges to the healthcare law. According to the 1867 Anti-Injunction Act, no suit can be brought to enjoin collection of a tax in advance of payment. Instead, taxpayers must pay first and litigate later. Since the Affordable Care Act does not require any payments until 2014, a ruling that the Tax Anti-Injunction Act bars judicial review would postpone a resolution of the healthcare law's constitutionality for several years. |
| The justices' questioning, however, did not seem to indicate much support for this approach. For one thing, none of the parties supports it either. The federal government, which argued this point in lower courts, has abandoned the argument now that the case is in the US supreme court. Because of this, the court had to appoint an outside lawyer to argue the issue. | The justices' questioning, however, did not seem to indicate much support for this approach. For one thing, none of the parties supports it either. The federal government, which argued this point in lower courts, has abandoned the argument now that the case is in the US supreme court. Because of this, the court had to appoint an outside lawyer to argue the issue. |
| To complicate matters, the Anti-Injunction Act has many exceptions, and a majority of the justices seemed to suggest that this case should fall within one of those. Further, the lawyers for both the state and federal governments argued that the penalties payable under the Affordable Care Act are not the kinds of taxes addressed by the Anti-Injunction Act, so the Aat should not apply. When the court moves on to the merits, however, the US government, represented by Solicitor General Donald Verrilli, will argue that the payments are taxes for purposes of assessing whether Congress had the constitutional authority to enact the Affordable Care Act. | To complicate matters, the Anti-Injunction Act has many exceptions, and a majority of the justices seemed to suggest that this case should fall within one of those. Further, the lawyers for both the state and federal governments argued that the penalties payable under the Affordable Care Act are not the kinds of taxes addressed by the Anti-Injunction Act, so the Aat should not apply. When the court moves on to the merits, however, the US government, represented by Solicitor General Donald Verrilli, will argue that the payments are taxes for purposes of assessing whether Congress had the constitutional authority to enact the Affordable Care Act. |
| Justice Alito, in particular, noted the irony of the US government's position. "General Verrilli," the justice said, "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." | Justice Alito, in particular, noted the irony of the US government's position. "General Verrilli," the justice said, "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." |
| "Tomorrow is different," Verilli responded. | "Tomorrow is different," Verilli responded. |
| Martha F Davis teaches constitutional law at Northeastern University school of law | Martha F Davis teaches constitutional law at Northeastern University school of law |
| Thomas Keck: 'This appears likely to lead to a substantive decision' | Thomas Keck: 'This appears likely to lead to a substantive decision' |
| With respect to the individual mandate, the justices have three broad options: they can uphold the law, strike down the law, or duck the question. The court has taken the third path on many notable occasions, and there has been lots of chatter in recent weeks indicating that the justices might go down that road this time. | With respect to the individual mandate, the justices have three broad options: they can uphold the law, strike down the law, or duck the question. The court has taken the third path on many notable occasions, and there has been lots of chatter in recent weeks indicating that the justices might go down that road this time. |
| At times, I've found these suggestions persuasive. After all, the political stakes involved render each of the other options unpalatable in key ways. But no one has yet come up with a persuasive answer to the question of why, if the justices are planning to duck the key issue, they are devoting an unprecedented six hours of argument time to the case. That would seem like an awful lot of wasted time and energy. | At times, I've found these suggestions persuasive. After all, the political stakes involved render each of the other options unpalatable in key ways. But no one has yet come up with a persuasive answer to the question of why, if the justices are planning to duck the key issue, they are devoting an unprecedented six hours of argument time to the case. That would seem like an awful lot of wasted time and energy. |
| The focus of Monday's arguments was the most widely discussed legal hook by which the justices could credibly avoid deciding the constitutionality of the individual mandate: that is, the claim that the Anti-Injunction Act bars a decision on that issue until the mandate has actually taken effect in 2015. And by all accounts, a majority of the justices appeared skeptical about following this path. | The focus of Monday's arguments was the most widely discussed legal hook by which the justices could credibly avoid deciding the constitutionality of the individual mandate: that is, the claim that the Anti-Injunction Act bars a decision on that issue until the mandate has actually taken effect in 2015. And by all accounts, a majority of the justices appeared skeptical about following this path. |
| The good news, then, is that this week's frenzy of argument appears likely to lead to a substantive decision on the merits. Here, the key question is whether the Affordable Care Act's requirement that all individuals obtain health insurance or pay a small annual tax penalty falls within the legitimate scope of congressional powers under Article I of the US constitution. There are only two possible answers to this question: yes, this law falls comfortably within the scope of federal legislative authority, as interpreted by the supreme court in cases from McCulloch v Maryland (1819), through Wickard v Filburn (1942), to Gonzales v Raich (2005); or no, it does not, in which case the US is operating under a seriously defective national constitution. | The good news, then, is that this week's frenzy of argument appears likely to lead to a substantive decision on the merits. Here, the key question is whether the Affordable Care Act's requirement that all individuals obtain health insurance or pay a small annual tax penalty falls within the legitimate scope of congressional powers under Article I of the US constitution. There are only two possible answers to this question: yes, this law falls comfortably within the scope of federal legislative authority, as interpreted by the supreme court in cases from McCulloch v Maryland (1819), through Wickard v Filburn (1942), to Gonzales v Raich (2005); or no, it does not, in which case the US is operating under a seriously defective national constitution. |
| Is the supreme court really prepared to hold that the people's elected representatives in Congress have no authority to regulate an industry that represents 18% of GDP? Is there any other country in the world where this question would even be asked? At Tuesday's arguments, we'll get a first glimpse at what the justices are thinking here. | Is the supreme court really prepared to hold that the people's elected representatives in Congress have no authority to regulate an industry that represents 18% of GDP? Is there any other country in the world where this question would even be asked? At Tuesday's arguments, we'll get a first glimpse at what the justices are thinking here. |
| Thomas M Keck is the Michael O Sawyer chair of constitutional law and politics and chair of the department of political science at Syracuse University | Thomas M Keck is the Michael O Sawyer chair of constitutional law and politics and chair of the department of political science at Syracuse University |
| Sara Rosenbaum: 'The poor are subject to the minimum essential coverage requirement but not to the penalty' | Sara Rosenbaum: 'The poor are subject to the minimum essential coverage requirement but not to the penalty' |
| As has been widely reported, a sea of skepticism from all points on the supreme court's ideological spectrum greeted arguments by Robert Long, who had been designated as the court-appointed defender of the position that the Anti-Injunction Act (AIA) bars a pre-penalty challenge to the Affordable Care Act's minimum essential coverage requirement. | As has been widely reported, a sea of skepticism from all points on the supreme court's ideological spectrum greeted arguments by Robert Long, who had been designated as the court-appointed defender of the position that the Anti-Injunction Act (AIA) bars a pre-penalty challenge to the Affordable Care Act's minimum essential coverage requirement. |
| The first objection from the justices to Long's argument was the argument that the AIA is designed to stop individuals from bringing facial tax challenges, rather than the courts hearing them. For Justice Alito, who termed the law a "mandatory claims processing rule", the proper way to understand the AIA is as a law that prevents pre-emptive taxpayer judicial strikes against laws they don't like, thereby circumventing the Treasury Department's power to impose a tax and then sort matters out through a subsequent administrative proceeding. | The first objection from the justices to Long's argument was the argument that the AIA is designed to stop individuals from bringing facial tax challenges, rather than the courts hearing them. For Justice Alito, who termed the law a "mandatory claims processing rule", the proper way to understand the AIA is as a law that prevents pre-emptive taxpayer judicial strikes against laws they don't like, thereby circumventing the Treasury Department's power to impose a tax and then sort matters out through a subsequent administrative proceeding. |
| The second objection was best illustrated by Justice Breyer, who pointed out that the penalty "is not attached to a tax. It is attached to a healthcare requirement." Viewed thus, the question of whether the AIA is a true jurisdictional barrier or merely an administrative procedure rule becomes irrelevant, since it simply does not apply to cases like this one. A third objection voiced by the justices – and the one that eventually got the court into Medicaid territory, at least tangentially – was the argument is that the case really is a challenge to the minimum essential coverage requirement itself, not to the tax penalty that might attaches to people who fail to comply with the requirement. | The second objection was best illustrated by Justice Breyer, who pointed out that the penalty "is not attached to a tax. It is attached to a healthcare requirement." Viewed thus, the question of whether the AIA is a true jurisdictional barrier or merely an administrative procedure rule becomes irrelevant, since it simply does not apply to cases like this one. A third objection voiced by the justices – and the one that eventually got the court into Medicaid territory, at least tangentially – was the argument is that the case really is a challenge to the minimum essential coverage requirement itself, not to the tax penalty that might attaches to people who fail to comply with the requirement. |
| This is where Medicaid entered the picture. Solicitor General Donald Verrilli appeared to take the position that the poor are not subject to the minimum coverage requirement, when, in fact, they are. In trying to make the point that for AIA purposes the penalty cannot be separated from the mandate, Verrilli seemed to be trying to avoid the obvious, namely, that the poor are indeed subject to what was termed the "must-buy" requirement, that is, the minimum essential coverage requirement, regardless of whether they ever would be subject to a penalty. | This is where Medicaid entered the picture. Solicitor General Donald Verrilli appeared to take the position that the poor are not subject to the minimum coverage requirement, when, in fact, they are. In trying to make the point that for AIA purposes the penalty cannot be separated from the mandate, Verrilli seemed to be trying to avoid the obvious, namely, that the poor are indeed subject to what was termed the "must-buy" requirement, that is, the minimum essential coverage requirement, regardless of whether they ever would be subject to a penalty. |
| Because this point is so crucial to the National Federation of Independent Businesses' argument regarding the right to proceed even if the AIA knocks out its challenge to the tax penalty, Gregory Katsas, arguing for the respondents, raised the Medicaid example. Precisely because they are subject to the minimum essential coverage requirement but not to the penalty, he argued, the poorest Americans illustrate the very point that the Affordable Care Act challengers make – namely, that even if the penalty is inapplicable or waived for those covered by Medicare, all people obligated under the minimum coverage requirement are subject to the command of the law and therefore have the right (that is, the standing) to challenge it. | Because this point is so crucial to the National Federation of Independent Businesses' argument regarding the right to proceed even if the AIA knocks out its challenge to the tax penalty, Gregory Katsas, arguing for the respondents, raised the Medicaid example. Precisely because they are subject to the minimum essential coverage requirement but not to the penalty, he argued, the poorest Americans illustrate the very point that the Affordable Care Act challengers make – namely, that even if the penalty is inapplicable or waived for those covered by Medicare, all people obligated under the minimum coverage requirement are subject to the command of the law and therefore have the right (that is, the standing) to challenge it. |
| The court will, of course, on Wednesday turn to the question of whether Congress even has the power to deal with the poor in this way. In the meantime, the relationship between the minimum essential coverage requirement and Medicaid turns out to be key to the question of whether – in the unlikely event the court rules that the AIA prevents a challenge to the tax penalty – the court can still hear a challenge to the minimum coverage requirement. | The court will, of course, on Wednesday turn to the question of whether Congress even has the power to deal with the poor in this way. In the meantime, the relationship between the minimum essential coverage requirement and Medicaid turns out to be key to the question of whether – in the unlikely event the court rules that the AIA prevents a challenge to the tax penalty – the court can still hear a challenge to the minimum coverage requirement. |
| • This is an edited excerpt of Sara Rosenbaum's blogpost at Health Affairs, published with the author's permission | • This is an edited excerpt of Sara Rosenbaum's blogpost at Health Affairs, published with the author's permission |
| Sara Rosenbaum is the Harold and Jane Hirsh Professor and founding chair of the department of health policy at the George Washington University school of public health and health services | Sara Rosenbaum is the Harold and Jane Hirsh Professor and founding chair of the department of health policy at the George Washington University school of public health and health services |
| Timothy Jost: 'The court is unlikely to hold that the penalty is not a tax for purposes of the AIA, but is for constitutional purposes' | |
| In sum, the court seems unlikely to let the AIA stop it from hearing the underlying challenge to the Affordable Care Act (ACA). Several justices seem inclined to conclude that the AIA is not a total bar to court jurisdiction in tax challenges, but there seem also to be members of the court, notably Justice Breyer, inclined to go with the federal government's argument that the minimum coverage requirement penalty is not a tax. | |
| The support that Chief Justice Roberts showed for the position that the minimum coverage requirement and the penalty are not severable should give the Department of Justice hope for the success of its argument that the Medicaid expansion is constitutional. As Solicitor General Verrilli pointed out, most Medicaid recipients are not subject to the penalty, and therefore the argument of the states that the ACA compels them to expand Medicaid by forcing their citizens to enroll in it evaporates. Justices Ginsburg and Kagan also showed little sympathy for the states' argument that they are injured by the Medicaid expansions. | |
| The argument that the coverage requirement and penalty are inseparable is also at the heart of the federal government's argument that the coverage requirement is authorized under the power of Congress to tax and spend. But the court is unlikely to hold that the penalty is not a tax for purposes of the AIA, but is for constitutional purposes. | |
| In the unlikely event that the court should decide that the AIA applies, it would still be able to decide the state's challenge to the Medicaid expansions, which does not involve a tax. Congress can also always amend the AIA to exclude the Affordable Care Act from its reach – and might well do so. The statute already has a dozen exceptions. | |
| The case would be right back in court again then. This is one more reason to get the issue decided now, rather than dismiss it under the AIA. | |
| • This is an edited excerpt of Timothy Jost's blogpost at Health Affairs, published with the author's permission | |
| Timothy S Jost is the Robert L Willett Family Professor of law at the Washington and Lee University school of law |