Today is the first of three days of argument before the Supreme Court on the constitutionality of the health care law. The Court will ease into the case with a discussion not of substance, but timing.
Today is the first of three days of argument before the Supreme Court on the constitutionality of the health care law. The Court will ease into the case with a discussion not of substance, but timing.
The personal responsibility provision requires individuals (except for those exempt) to have health insurance by 2014 or pay a penalty to the IRS. The Anti-Injunction Act, a nineteenth century law, says that you cannot bring a legal challenge to a tax prior to that tax being paid. So the question up today is whether that law applies to the personal responsibility provision. If so, then the courts don’t have the power to hear the constitutional challenges to the provision until 2015, when the IRS penalties actually come due.
Early on in the cases challenging the personal responsibility provision, the United States argued that this law prevented the courts from hearing the challenges, but it has since abandoned that position. Nevertheless, one of the federal courts of appeals to consider the challenge to the personal responsibility provision refused to reach the merits, because, it held, the Anti-Injunction Act applied.
Because neither side in the case about the constitutionality of the personal responsibility provision is currently arguing that the Anti-Injunction Act applies, the Supreme Court actually appointed an additional attorney whose job it is just to argue this position. If he carries the day today, he will be responsible for an anticlimactic opinion, in which the Court would essentially say, never mind, let’s all do this again in a few years. In other words, one thing the Court may decide about the constitutionality of the health care law, is that it isn’t yet time to decide the constitutionality of the health care law.
If that happens, Congress could pass a law amending the Anti-Injunction Act and allowing this question to come back before the Supreme Court next term. Or everybody could just come back later. The uncertainties about what the Court might look like in 2015 or 2016, who will be President and thus whose administration will be responsible for defending the health care law, whether Congress might amend portions of the law between now and then, and if the additional three years of work implementing the law and allowing people to better understand its benefits would make a difference in political and legal perceptions of the personal responsibility provision all make it very hard to predict what it would really mean for the Court to wait to decide this question until another day.