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SCOTUS meets ACA
Author: Raine    Date: 03/26/2012 14:44:51

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 writes:
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.

http://talkingpointsmemo.com/Images/Screen%20shot%202012-03-26%20at%2010.00.33%20AM.png


People are watching.

and
Raine
 

36 comments (Latest Comment: 03/27/2012 01:00:40 by wickedpam)
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Comment by Mondobubba on 03/26/2012 15:18:09
First! Sorta...

Comment by wickedpam on 03/26/2012 15:28:33
hhmmm?

Comment by Raine on 03/26/2012 15:37:01
Quote by wickedpam:
hhmmm?
the show, or something I wrote?


Comment by wickedpam on 03/26/2012 15:41:54
Quote by Raine:
Quote by wickedpam:
hhmmm?
the show, or something I wrote?



oh no, what you wrote was great as always

It was more a blasé comment about Mondo being "first"

Comment by BobR on 03/26/2012 15:43:07
Quote by Mondobubba:
First! Sorta...

I'll alert the media...



Comment by wickedpam on 03/26/2012 15:45:15
Quote by BobR:
Quote by Mondobubba:
First! Sorta...

I'll alert the media...




In my head I heard Sir John Guildgud(sp)

Comment by Raine on 03/26/2012 15:46:49
Quote by wickedpam:
Quote by BobR:
Quote by Mondobubba:
First! Sorta...

I'll alert the media...




In my head I heard Sir John Guildgud(sp)



Comment by Raine on 03/26/2012 15:48:31
Comment by Mondobubba on 03/26/2012 15:52:48
Quote by wickedpam:
Quote by BobR:
Quote by Mondobubba:
First! Sorta...

I'll alert the media...




In my head I heard Sir John Guildgud(sp)


John Gielgud. Close, Mala.

Comment by Mondobubba on 03/26/2012 15:57:40


Well, they are consistent tin foil hat wearing loons.


Comment by wickedpam on 03/26/2012 15:57:56
Quote by Mondobubba:
Quote by wickedpam:
Quote by BobR:
Quote by Mondobubba:
First! Sorta...

I'll alert the media...




In my head I heard Sir John Guildgud(sp)


John Gielgud. Close, Mala.



yeah, it was kinda phonetic-ey

Comment by Mondobubba on 03/26/2012 15:59:54
BTW how do Mamma and the Mook look on the teevee mosheen?

Comment by Raine on 03/26/2012 16:02:04
Quote by Mondobubba:
BTW how do Mamma and the Mook look on the teevee mosheen?
They looked good. Jim looked bored, and I was trying to see what kind of porn he was scoping out on his laptop.

I missed seeing rebekah. because mostly I'd rather just listen to the show. I did turn the TV to help give the show some ratings.

BTW, where is Liv? he was so excited to be able to watch...

Comment by Raine on 03/26/2012 16:02:56
CBS is reporting that there a many more supporters than opponents outside the Supreme court.

Wonder how that will play when Ricky comes to town...

Comment by Mondobubba on 03/26/2012 16:07:01
Quote by Raine:
Quote by Mondobubba:
BTW how do Mamma and the Mook look on the teevee mosheen?
They looked good. Jim looked bored, and I was trying to see what kind of porn he was scoping out on his laptop.

I missed seeing rebekah. because mostly I'd rather just listen to the show. I did turn the TV to help give the show some ratings.

BTW, where is Liv? he was so excited to be able to watch...



His porn???

Comment by Mondobubba on 03/26/2012 16:08:08
The fact that the offer has been accepted on the house is slowly sinking in.

Comment by Raine on 03/26/2012 16:22:13
Quote by Mondobubba:
The fact that the offer has been accepted on the house is slowly sinking in.

This is going to be the beginning of new and wonderful things, Mondo.

I know it is scary -- but think of all the possibilities.

Comment by Raine on 03/26/2012 16:23:22
Quote by Mondobubba:
Quote by Raine:
Quote by Mondobubba:
BTW how do Mamma and the Mook look on the teevee mosheen?
They looked good. Jim looked bored, and I was trying to see what kind of porn he was scoping out on his laptop.

I missed seeing rebekah. because mostly I'd rather just listen to the show. I did turn the TV to help give the show some ratings.

BTW, where is Liv? he was so excited to be able to watch...



His porn???
What? Haven't we been told he likes the porn on the laptop?


Comment by Mondobubba on 03/26/2012 16:24:19
Quote by Raine:
Quote by Mondobubba:
The fact that the offer has been accepted on the house is slowly sinking in.

This is going to be the beginning of new and wonderful things, Mondo.

I know it is scary -- but think of all the possibilities.



Exactly!

Comment by Raine on 03/26/2012 16:28:49
An early summary of what happened this morning in the ACA arguments:

Justices Breyer and Sotomayor asked questions suggesting that the mandate and its associated penalty are not taxes within the meaning of the Anti-Injunction Act. Justice Scalia suggested that limitations on jurisdiction are normally construed narrowly, which likewise would press against application of the Anti-Injunction Act here. Justice Alito asked a number of questions suggesting that he did not believe the Anti-Injunction Act to be “jurisdictional,” and if it is not, then the government’s failure to raise the issue up to this point would forfeit any defense based on the Act.

The Chief Justice likewise suggested that even if the mandate is a tax, the government could waive the defense.


Comment by wickedpam on 03/26/2012 16:37:18
Quote by Raine:
An early summary of what happened this morning in the ACA arguments:

Justices Breyer and Sotomayor asked questions suggesting that the mandate and its associated penalty are not taxes within the meaning of the Anti-Injunction Act. Justice Scalia suggested that limitations on jurisdiction are normally construed narrowly, which likewise would press against application of the Anti-Injunction Act here. Justice Alito asked a number of questions suggesting that he did not believe the Anti-Injunction Act to be “jurisdictional,” and if it is not, then the government’s failure to raise the issue up to this point would forfeit any defense based on the Act.

The Chief Justice likewise suggested that even if the mandate is a tax, the government could waive the defense.



all I'm hearing

so in english what did they say?

Comment by Raine on 03/26/2012 16:45:40
Quote by wickedpam:
Quote by Raine:
An early summary of what happened this morning in the ACA arguments:

Justices Breyer and Sotomayor asked questions suggesting that the mandate and its associated penalty are not taxes within the meaning of the Anti-Injunction Act. Justice Scalia suggested that limitations on jurisdiction are normally construed narrowly, which likewise would press against application of the Anti-Injunction Act here. Justice Alito asked a number of questions suggesting that he did not believe the Anti-Injunction Act to be “jurisdictional,” and if it is not, then the government’s failure to raise the issue up to this point would forfeit any defense based on the Act.

The Chief Justice likewise suggested that even if the mandate is a tax, the government could waive the defense.



all I'm hearing

so in english what did they say?
It goes to the issue that the mandate is not a tax, but rather a penalty. Opponents of the ACA are saying the mandate is a tax.

The best that I can understand, and I hope that Bob will jump in on this, it goes to the example proposed in the blog:
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.
So this example is related to if we decide that the mandate is a tax at all.

They are questioning that the Mandate is NOT a tax, but rather a penalty. If you go back to the blog, the AIA argument is that you can't protest a tax that hasn't been implemented into practice. That's the way I'm understanding it.





Comment by Raine on 03/26/2012 16:47:35
and when I say as accepted as law, I mean implemented. the Mandate wont start until 2015.

Comment by BobR on 03/26/2012 16:48:27
I think you got that right in the second part of your response, and got it backwards in the first part. Essentially, the question is whether the mandate amounts to a tax break for those that maintain insurance, or a non-tax financial penalty for those that don't.

Comment by livingonli on 03/26/2012 16:55:53
Hello folks. Late nights at work really kill my ability to get up and watch things although I did DVR the show so I can catch it later now with my screwy schedule. Now, once again I have to try and work on getting to bed earlier. And flipping channels, SNY is right now deep in Tebow mania as they aired his press conference and he is supposed to do a one one one with one of the SNY anchor-reporters.

Comment by BobR on 03/26/2012 16:56:00
Quote by BobR:
I think you got that right in the second part of your response, and got it backwards in the first part. Essentially, the question is whether the mandate amounts to a tax break for those that maintain insurance, or a non-tax financial penalty for those that don't.

To take it further, the arguments today are whether opponents of the act can protest a tax law that hasn't yet gone into effect. If that's the argument, then it seems to be a given that this IS tax-related, and that takes a lot of the wind out of the sails of those arguing it's a non-tax government intrusion into commerce.

Comment by wickedpam on 03/26/2012 16:57:57
Thanks you guys I think I got it.

Comment by livingonli on 03/26/2012 17:33:14
I do wish Mondo's kitty would come home. That Realtor must have really scared her off. The cat here actually seems to know boundaries. When she goes outside, she only goes so far and then comes to the door when she wants to come back in. She was outside when I came home, and when she saw me, she meowed for attention and to get back in.

Comment by BobR on 03/26/2012 18:37:58
Quote by livingonli:
I do wish Mondo's kitty would come home. That Realtor must have really scared her off. The cat here actually seems to know boundaries. When she goes outside, she only goes so far and then comes to the door when she wants to come back in. She was outside when I came home, and when she saw me, she meowed for attention and to get back in.

Mondo, I hope you are calling (or visiting) the appropriate animal control facility on a daily basis.

Comment by Mondobubba on 03/26/2012 19:32:47
Quote by BobR:
Quote by livingonli:
I do wish Mondo's kitty would come home. That Realtor must have really scared her off. The cat here actually seems to know boundaries. When she goes outside, she only goes so far and then comes to the door when she wants to come back in. She was outside when I came home, and when she saw me, she meowed for attention and to get back in.

Mondo, I hope you are calling (or visiting) the appropriate animal control facility on a daily basis.


Yes, of course.

Comment by Raine on 03/26/2012 23:21:03
It is a sad realization to me. that EVERY one of the GOP candidates responses to the Trayvon Martin murder sound quite like the racist apologists during the most intense wave of the civil rights movement.

They sound like the mayor of Birmingham during the bus strike. They sound like the mayor of Memphis during the Sanitation workers strike.



Comment by TriSec on 03/26/2012 23:44:39
TriSec visits the blog...

http://1.media.sportspickle.cvcdn.com/69/39/91a977ea6a284fc3d134d4f35db2d8c4.jpg


Comment by Will in Chicago on 03/27/2012 00:17:46
Raine, thanks for a great blog. We will have to see what develops with the Supreme Court.

I suspect that tomorrow will be more telling about the opinions of the justices.

Comment by Raine on 03/27/2012 00:23:45
Quote by TriSec:
TriSec visits the blog...

http://1.media.sportspickle.cvcdn.com/69/39/91a977ea6a284fc3d134d4f35db2d8c4.jpg


I can't help it..



your sprit is here, Tri. It is.


Comment by livingonli on 03/27/2012 00:42:13
Another night. Another sucky performance from the Knicks.

Comment by wickedpam on 03/27/2012 01:00:40
Quote by TriSec:
TriSec visits the blog...

http://1.media.sportspickle.cvcdn.com/69/39/91a977ea6a284fc3d134d4f35db2d8c4.jpg





awww, if its any consellation know that you are missed