Today’s 90-minute opener for three days of oral argument involves the dullest and most technical of issues: Can the Supreme Court even consider this case? Does it have jurisdiction?
In other words, after inviting everyone over for a gigantic constitutional law party, does it have to end shortly after serving a few hors d’oeuvres? What about that tasty main course involving the individual mandate?
Don’t worry. The argument will get better, and more interesting, tomorrow. And the Court appears unlikely to dismiss the case challenging the Affordable Care Act’s (ACA’s) individual mandate on jurisdictional grounds.
The technical issue up for argument today is whether or not the 19th century Anti-Injunction Act bars this legal challenge from proceeding until the individual mandate actually is implemented in January 2014, and its penalties for non-compliance begin to be enforced after April 15, 2015. The 1867 AIA (later amended) provides that no lawsuit to restrain the assessment or collection of any tax shall be maintained in any court by any person. In other words, pay first, then sue later.
Today’s oral argument was even more unusual because the federal government already has conceded the jurisdictional point in several federal appellate courts and in its briefs before the Supreme Court. Obama administration attorneys basically agree with the states and other private parties challenging the ACA on this issue—although for somewhat different reasons.
The administration used to say that the mandate was enforced by a “tax,” but then decided it was a “penalty”—depending on whether the issue involved jurisdiction or the constitutional authority of Congress to enact it. “A foolish consistency is the hobgoblin of small minds,” or at least antithetical to serving the political agenda of the Obama administration.
But because the 4th Circuit Court of Appeals upheld the AIA as a barrier to a similar lawsuit challenging the health law, the Supreme Court appointed an outside attorney to serve as a special amicus to argue for that position. The actual case before the Court today stems from the 11th Circuit court decision that overturned the individual mandate, and did not deal specifically with the AIA argument against doing so.
The respective attorneys have made a number of arguments for and against this case, but the key ones involve how the provisions for a “penalty” for violating the individual mandate were written by Congress in passing the ACA and how they should be interpreted. More on that in my next post.