Health care reform & the Supreme Court: day one

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The Supreme Court of the United States was the setting for the first of three days of oral arguments on the future of the Affordable Care Act (ACA).

The question before the Justices today was whether the 19th Century Anti-Injunction Act (AIA) barred consideration of the case by the lower courts (hence, also the Supreme Court) before the “tax” penalty for failure to comply with the individual mandate (individuals must purchase coverage or pay a penalty as of 2014) is levied.

The Court seemed to be quite skeptical of this argument. Click on this link to listen to the arguments or click here to read the transcript.

This threshold issue of standing was actually raised by the Court itself, using hired counsel (Robert Long, Covington & Burling) to make the argument. Both the federal government (supporting ACA) and opponents of the law opposed the AIA challenge.  U.S. Solicitor General Donald Verrilli argued that the penalty is not a tax, hence the AIA doesn’t apply.  Gregory G. Katsas of Jones Day argued that the penalty is different than the type of revenue-oriented tax envisioned under the AIA.

The Court will meet again tomorrow to hear the cornerstone arguments on the constitutionality of the individual mandate.

Wednesday the Court will hear two arguments re: the Medicaid expansion and severability.

Formal decisions on the ACA cases before the Court are not expected until June or later.

Nevertheless, the outcome of today’s argument appears pretty evident: the Court will not use the AIA to side-step this judicial – and, yes, political, hot potato.

Stay tuned for more…

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