Court looks at tax is­sue in Obama health law

Three days of ar­gu­ments open

The Washington Times Daily - - Front Page - BY PAIGE WIN­FIELD CUN­NING­HAM

Kick­ing off three days of highly an­tic­i­pated oral ar­gu­ments over Pres­i­dent Obama’s health care law, zeal­ous demon­stra­tors on Mon­day swarmed the streets out­side the Supreme Court while in­side the jus­tices con­sid­ered whether they have the power to de­cide the case at all.

In a hear­ing that felt like a warmup to Tues­day and Wed­nes­day, the court sig­naled it is not likely to let a 145-year-old tax law called the Anti-in­junc­tion Act stop them from rul­ing on the mer­its of the case.

Nei­ther the Obama ad­min­is­tra­tion nor the chal­lengers are claim­ing that the tax law ap­plies to 2010’s Af­ford­able Care Act, but the nine jus­tices, ea­ger to hear that ar­gu­ment any­way, in­vested them­selves in knotty ques­tions over whether the AIA bans them from rul­ing on the case right now — ap­pear­ing skep­ti­cal of ar­gu­ments made by their own self-ap­pointed at­tor­ney, Robert Long.

Un­der at least one in­ter­pre­ta­tion of the AIA, the court could duck the con­sti­tu­tional ques­tions over whether the gov­ern­ment can re­quire Amer­i­cans to pur­chase in­sur­ance cov­er­age or pay a penalty — at least un­til 2014, when the penalty kicks in.

The key ques­tion is whether the penalty the Af­ford­able Care Act would

im­pose on those who refuse to buy in­sur­ance would fall un­der the ju­ris­dic­tion of the 19th-cen­tury law, which pro­tects the gov­ern­ment’s abil­ity to col­lect taxes by block­ing chal­lenges un­til af­ter a tax al­ready has gone into ef­fect.

Jus­tice Stephen G. Breyer seemed doubt­ful that Congress in­tended the health care penalty to be a tax. Jus­tice Ruth Bader Gins­burg said that’s be­side the point be­cause the law­suit is over the man­date, not the penalty. And Jus­tice An­tonin Scalia said that un­less a limit on the court’s ju­ris­dic­tion is clear, the court’s usual prac­tice is to rule.

“And I find it hard to think that this is clear,” he said.

Some lower courts have up­held the health care law, which passed Congress two years ago, while other courts have sided with chal­lengers and found the law un­con­sti­tu­tional.

One panel of judges for the 4th U.S. Cir­cuit Court of Ap­peals ruled that it was pre­ma­ture to con­sider chal­lenges to the bill be­cause of the AIA. Even though nei­ther the Obama ad­min­is­tra­tion nor the Af­ford­able Care Act’s op­po­nents be­lieve that to be the case, the Supreme Court wanted to hear those ar­gu­ments.

At times Mon­day, the Obama ad­min­is­tra­tion’s chief at­tor­ney, Solic­i­tor Gen­eral Don­ald B. Ver­rilli Jr., seemed to get tripped up with the com­plex ar­gu­ments. He re­peat­edly called the penalty a “tax” — draw­ing a cor­rec­tion from Jus­tice Breyer, who coun­tered that it in fact was just a penalty, un­der the law.

The seem­ingly ar­cane point mat­ters to the Obama ad­min­is­tra­tion, which ar­gues that while the penalty isn’t a tax for pur­poses of the AIA, it is a tax when it comes to the ex­tent of lee­way Congress is granted un­der the Con­sti­tu­tion’s taxand-spend pow­ers.

Mr. Ver­relli is ex­pected to make those ar­gu­ments this week when the court reaches the real crux of the case.

Jus­tice Sa­muel An­thony Al­ito Jr. pointed out the seem­ing con­tra­dic­tion.

“Gen­eral Ver­rilli, to­day you are ar­gu­ing that the penalty is not a tax,” Mr. Al­ito said. “To­mor­row you are go­ing to be back and you will be ar­gu­ing that the penalty is a tax.”

As the jus­tices hud­dled in their de­lib­er­a­tions over the tax law, pro­test­ers gath­ered out­side the court to ar­gue over the broader im­pli­ca­tions of the case, which could set prece­dents on how far the fed­eral gov­ern­ment’s pow­ers can reach.

The court will hear two hours of ar­gu­ments over the in­di­vid­ual man­date on Tues­day, while the ex­pan­sion of Med­i­caid and whether the man­date can be sev­ered from the rest of the Af­ford­able Care Act is on Wed­nes­day’s docket.

A CNN poll re­leased Mon­day found that 73 per­cent of Amer­i­cans want the court to over­turn at least some of the health care re­form’s pro­vi­sions, while 23 per­cent want to keep the law as is.

Just across the street, con­gres­sional law­mak­ers con­tin­ued high­light­ing their dif­fer­ences over the law, with Se­nate Mi­nor­ity Leader Mitch Mccon­nell, Ken­tucky Re­pub­li­can, blast­ing it from the Se­nate floor.

“We’re bas­ing our opin­ion on some­thing sim­pler than the le­gal ar­gu­ments we’ll hear this week,” Mr. Mccon­nell said. “We’re look­ing at whether this law helped or hurt. And on that ques­tion, the ver­dict’s al­ready in. Just like so much else this pres­i­dent has done over the past few years.”

In a rare mo­ment where both sides agreed in Mon­day’s hear­ings, plain­tiffs’ at­tor­ney Gre­gory Kat­sas also ar­gued against ap­ply­ing the AIA to the case. He rep­re­sents the Na­tional Fed­er­a­tion of In­de­pen­dent Busi­nesses and 26 states bring­ing the law­suit.

Both sides said that if Congress had viewed the penalty as a tax, it would have clar­i­fied that. But Mr. Long ar­gued that by di­rect­ing the penalty to be “as­sessed and col­lected in the same man­ner as a tax,” Congress was in­ten­tion­ally plac­ing it in the same cat­e­gory as a tax.

Jus­tice Breyer seemed to dis­agree. “It be­ing col­lected in the same man­ner as a tax doesn’t make it a tax,” he said.

Jus­tice Breyer said that if the court de­cides the penalty isn’t a tax, it could give fu­ture courts wide lat­i­tude to de­ter­mine what counts as a tax and what doesn’t. Giv­ing fu­ture judges too much wig­gle room “plays a sig­nif­i­cant role in my mind,” he said.

“We don’t want 500 fed­eral judges sub­sti­tut­ing their opin­ion,” he said.


A crowd gath­ered in front of the U.S. Supreme Court build­ing, as one ex­plained, to pray “for moral dis­cern­ment that leads our na­tion to a more com­pas­sion­ate com­mit­ment to the com­mon good” as the court con­sid­ered the health care law.

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