Today the Supreme court begins the first of the days of hearing on the constitutionality of the Affordable Care Act.
It will consist of 6 hours of oral arguments, and its longest argument in almost 45 years.
At issue today is the Anti Injunction Act (AIA)
a federal tax law that says, in essence, that a taxpayer cannot challenge a tax, at a minimum, until it comes into effect.
If the Supreme Court eventually rules that the individual mandate triggers the AIA, the court will have effectively punted the constitutional debate concerning the individual mandate down the road. It will have found that no challenge to the mandate can be brought until it goes into effect, which is after 2014.
The AIA, enacted in 1867, says “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person.” It was passed to protect the government’s need to assess and collect taxes as expeditiously as possible with minimum interference from the judiciary.
Confused yet? The issue that everyone is talking about is the mandate
which doesn't go into effect until 2015, 3 years from now. Essentially people are watching to see if the Supreme Court will say that the mandate triggers the AIA. If it does, no challenge can be made to it until after it goes into effect. As the article states: it would be a SCOTUS punt. So far, lower courts have been divided on whether or not it applies, and that is why we are here. Four lower courts have so far ruled on the ACA
. 2 courts have upheld the law, 1 struck down the mandate only and the fourth ruled on this issue of the AIA. Today this specific issue is being discussed. It's basically discussing whether or not people can challenge paying a tax before it goes into effect.NPR
has a good rundown of the going on this week. Tomorrow the court will hear arguments on the constitutionality of the government forcing people to purchase health insurance. Wednesday the discussions will be with regard to the mandate again, and - if it is struck down - does the entire ACA fall and - if not the entire law - which parts? Wednesday will also include discussion of the expansion of Medicare to the states. It will be an interesting week. Depending on how the Supreme Court rules, this could throw our tax code into chaos. For example, as my husband explained it: If the mandate is unconstitutional because it applies a financial penalty for not buying insurance, then the mortgage tax deduction is unconstitutional because it applies a financial penalty for renting instead of buying a house.
People are watching. They are here in DC trying to acquire what is being called the hottest ticket in town.
People are lined up around the block of the Supreme Court. People have literally camped outside. The Tea Party is in town as are supporters of the ACA. Michelle Bachman
will be sitting inside the chambers listening to the arguments. Rick Santorum
will take his campaign to the steps of the Supreme Court today as well. Political wonks are watching as well
But it would not spell certain doom for [Obama's] re-election. In fact, it would end the GOP argument that a Republican president must be elected to guarantee repeal of the law. It also could re-energize liberals, shift the spotlight onto insurance companies and reignite a debate about how to best provide health care.
If the court upholds the law, Obama would be vindicated legally. Republican constitutional criticisms would be undercut because five of the nine justices were nominated by Republican presidents.
But opposition would intensify in the political world. Without legal recourse, Republicans would gain new energy to argue that the only path to kill the law would be to elect a Republican president and enough GOP candidates to control the House and Senate. They might be wary of promising overnight repeal because a filibuster-proof Senate majority seems beyond their reach in the November election.
In a certain sideshow of irony, the house passed HR5, sponsored by Phil Gingrey
(R-GA),which is aimed to "improve patient access to health care services and provide improved medical care by reducing the excessive burden the liability system places on the health care delivery system." In the bill, there is section 303:
SEC. 303. CONSTITUTIONAL AUTHORITY.
The constitutional authority upon which this title rests is the power of the Congress to provide for the general welfare, to regulate commerce, and to make all laws which shall be necessary and proper for carrying into execution Federal powers, as enumerated in section 8 of article I of the Constitution of the United States.
That's the commerce clause. Unintentionally, they have accepted the constitutionality of the Affordable Care Act. As Think Progress
The administration is deploying this very argument in defense of the Affordable Care Act at the Supreme Court next week, insisting that since health care costs “affect interstate commerce,” the Constitution’s commerce clause empowers Congress to regulate the industry and require everyone to purchase coverage in an effort to lower insurance premiums. As a result of the mandate — that is, if people must purchase insurance before they fall ill — Congress can require insurance companies to accept all applicants, regardless of their pre-existing conditions, and offer more affordable coverage to those who need it most.
In another sign of optimism, the American Bar Association
polled “a select group of academics, journalists and lawyers who regularly follow and/or comment on the Supreme Court” for their predictions on how the Supreme Court will decide the Affordable Care Act lawsuit. A massive 85 percent said that the Court would uphold the law on the merits, and another 9 percent said that they believe the Court will hold that it does not have jurisdiction to hear the case — meaning that only a tiny fraction of legal experts believe that the Court will accept the utterly meritless case against the ACA.
Using the commerce clause on issues not directly
associated with the nation's economy is not without precedent, and there are indications that SCOTUS may very well rule for ACA's constitutionality
In 2010, the Supreme Court handed down a case called United States v. Comstock which upheld a law that was very much at the margins of Congress’ lawful authority. In that opinion, Roberts took a somewhat more expansive view of federal power than Kennedy.
Because the Constitution gives Congress authority to “regulate commerce,” the United States has broad, sweeping authority over economic matters, but far more limited authority over non-economic regulation. Comstock upheld a federal law allowing for the indefinite detention of some sex offenders — a law which has virtually nothing to do with the nation’s economy. Nevertheless, Chief Justice Roberts joined the Court’s four more moderate members in a majority opinion upholding this non-economic law. Justice Kennedy wrote a separate concurrence which upheld the law as well, although on somewhat narrower ground.
Both the opinion Roberts joined and Kennedy’s concurrence support the conclusion that the ACA is constitutional. Moreover, unlike the law in Comstock, the ACA is very much at the core of Congress’ lawful authority because the Affordable Care Act regulates a market that comprises one-sixth of the national economy.
Will they rule it constitutional or not? Will they kick the can down the road? Only time will tell; Specifically -- 6 hours over the course of three days.
People are watching.