The health care reform legislation finally is having its day (well, actually several days) in court — in the United States Supreme Court no less. Other than for those fixated on the upcoming Final Four (unfortunately, the author’s team already has been eliminated and thus I am free to write this) or on the triumphant return of Tiger Wood to the pinnacle of golf, it has been quite difficult to miss all the media attention aimed at this week’s arguments before the Supreme Court concerning the health care reform legislation passed by Congress in 2009. The Court has scheduled six hours to hear arguments on legal issues related to the legislation. There are four issues before the court, including: (1) whether the minimum coverage requirement (i.e., the individual mandate) is constitutional; (2) whether the remaining portions of the legislation are severable from the individual mandate, assuming that mandate is invalidated; (3) whether the additional financial burden placed on the states due to the expansion in the Medicaid program violates the states’ rights under the Tenth Amendment, and (4) whether the case is ripe for adjudication under the federal Anti-Injunction Act. The oral arguments have been scheduled over three days, from Monday, March 26 through Wednesday, March 28.
First up on Monday was the question related to the Anti-Injunction Act, which essentially asks whether a challenge to the imposition of a penalty on individuals who refuse to purchase health care coverage is ripe for adjudication at a time when that penalty is not yet effective. The individual mandate to purchase health care coverage first becomes effective in 2014, and penalties related to a refusal to purchase generally would not be collected by the government until 2015. Thus, it may be that an action to challenge the legislation could not be brought until at least 2015. In essence, the idea behind the Anti-Injunction Act (which was enacted way back in 1867) is to prohibit challenges to the imposition of taxes until such taxes are imposed and paid. In turn, the issue becomes whether the penalties for non-coverage imposed under the health care reform legislation are in nature taxes and so covered by the Anti-Injunction Act. Some observers believe that the Court, not unmindful of the attendant political pressure, might find this approach attractive (in sports parlance, this could be classified as a punt). However, a number of experienced legal observers of the Court seem doubtful that the justices will go this route. As an interesting but apparently not dispositive aside, the major litigants in this case (i.e., both the federal government and the states that originally brought the action) agree that the Anti-Injunction Act does not apply in this case.
Although it often is quite difficult to make accurate predictions on outcomes based on oral arguments before the court, most observers on Monday’s arguments came away with the view that the Court is ready to rule now (one way or the other) on the constitutionality of the health care reform legislation. While the questions and comments of the justices on Monday offered little, if any, insight on how they might rule on the larger constitutional questions, they certainly suggested that were not happy with the option to defer a decision on the merits. If strength is in numbers, and I know that is not really the case here unless that number is nine (i.e., the nine justices sitting on the Court), then the majority of the commentators on Monday’s arguments seem to have come away with the sense that the Anti-Injunction Act argument will be rejected. To many, the justices seemed to be seeking a way to reach a decision on the merits of the case without jeopardizing the continued vitality of the Anti-Injunction Act (which clearly serves a useful purpose in many contexts). To carry my sports analogy perhaps a bit too far, it appears the Court is not planning to line up in punt formation! (If you’re interested, you can listen to Monday’s Oral Arguments or view the transcript on the Supreme Court’s website.)
Day Two of the oral arguments deals with the constitutionality of the individual mandate. Of course, this is the main issue in the debate and is at the heart of both the legal and the political dispute. It undoubtedly will be an interesting day.