Health Care and the Court

Obamacare, Day 1: 'Taxes,' 'Penalties,' and Health Reform


Protesters outside the Supreme Court on Monday March 26, 2012

Photograph by Jacquelyn Martin/AP Photo

Protesters outside the Supreme Court on Monday March 26, 2012

One thing appears to have been resolved on the first of three days of argument over the fate of Obamacare: The Anti-Injunction Act of 1867 will not spoil the fun.

In the five-alarm, all-hands-on-deck build-up to this week’s oral arguments in the constitutional challenge to President Barack Obama’s health-care overhaul, some legal cards suggested that the justices might toss the case because the obscure 19th century anti-injunction provision would bar a decision on the merits. UCLA Law School’s Adam Winkler provided a surprisingly understandable guide to this baffling legal cul de sac.

Fear not. If the banter from the bench Monday at the high court meant anything—and sometimes the justices diabolically send confusing messages while toying with lawyers before them—it seemed to indicate that we’ll get a substantive ruling, and we’ll get it this year.

Briefly—very briefly, because it’s going to be irrelevant—the Anti-Injunction Act of 1867 blocks lawsuits over taxes that haven’t been imposed yet. The justices themselves had posed the semantic-cum-procedural question of whether the health-care law’s central provision, which requires that Americans either get insurance or pay a penalty, could be considered a (yet-to-be-imposed) “tax.”

No way, said Justice Ruth Bader Ginsburg. “This is not a revenue-raising measure,” she noted, referring to the Affordable Care Act. “If it’s successful, nobody will pay the penalty, and there will be no revenue to raise.”

This falls under the jurisprudential category of “if it don’t quack like a tax, it ain’t a tax.” Justice Stephen Breyer made the pithy observation that Congress “did not use the word ‘tax’” in enacting the health-care law.

So, now we have that out of the way. On Tuesday, the justices are scheduled to turn to the heart of the matter: whether Congress possesses the authority under the Commerce Clause of the Constitution to regulate health care and insurance in the manner dictated by the Affordable Care Act of 2010. On the third day of argument on Wednesday, the justices will ponder what would happen to the rest of the law if the insurance mandate were struck down—and whether the law’s expansion of the Medicaid program for the poor unconstitutionally coerces the states into spending more on health care for those who lack financial means.

Indicating the importance of those questions, the court has scheduled three days of argument—six hours in all—which is the most verbal legal quibbling, er, analysis, the justices have inflicted on themselves in 44 years. The ruling, expected by June or July, will help determine the future of a measure designed to extend insurance to about 32 million people and revamp an industry that accounts for about 17 percent of the U.S. economy.

However the case turns out, it’s sure to play a role in the fall presidential campaign, as, for better or worse, the Affordable Care Act constitutes President Obama’s chief legislative accomplishment. Republican presidential contender Rick Santorum even popped up outside the Supreme Court after the justices heard arguments. The former Pennsylvania senator used the marble-pillared backdrop to pillory his nomination rival Mitt Romney. Santorum said Romney is “the worst person” to try to debate health-care reform with Obama. Romney “can’t, because he supported government-run health care as governor of Massachusetts,” Santorum said.

The debate resumes Tuesday morning—in the high court chamber and across the land. We’ll keep you posted.

Barrett_190
Barrett is an assistant managing editor and senior writer at Bloomberg Businessweek. His new book, Law of the Jungle, which tells the story of the Chevron oil pollution case in Ecuador, will be published by Crown in September 2014.

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