Although we don’t have the final score, it appears the high-profile challenge to the federal health reform law’s “individual mandate” has survived its first-round matchup in the Supreme Court’s version of the NCAA’s March Madness.
For
those of you addicted to the NCAA basketball tournament, Monday’s oral arguments before the Supreme Court amounted to a “play-in game” for the law’s challengers. In the first of several consecutive days of arguments related to the constitutionality of the individual mandate, the Supreme Court on Monday morning had to first consider whether it may even take up the challenge to the mandate prior to 2014, when the mandate goes into effect and the first penalties for violation are imposed.
A 145-year-old federal law—the Anti-Injunction Act—prohibits a challenge to a tax law before the tax is paid. This morning the Court took up the questions, “Is the penalty for disobeying the individual mandate a tax?” and if so, “May the Court simply allow the government’s lawyers to waive the requirement that the tax first be paid?”
When the horn sounded one hour and 29 minutes after tip-off, it appeared clear the Court is prepared to move forward now, and settle the larger constitutional question. A transcript of Monday’s oral arguments suggests a majority of the Court seems inclined to think the individual mandate penalty is not a tax at all, at least not for purposes of applying the Anti-Injunction Act. Although the health reform law says that the penalty is to be assessed and collected like a tax, the law does not describe the penalty as a tax.
Even if the penalty were a tax, a majority of the Court seems inclined to believe the government’s lawyers may simply waive the requirement that the tax be paid before courts weigh in on the constitutionality of the mandate that may give rise to the tax. Lawyers for the Obama Administration have made clear their desire that the Supreme Court decide the constitutional question now.
In short, the Court seems prepared to allow the challenge to the individual mandate to, in the words of college basketball coaches everywhere this time of year, “survive and advance.”
The real fun begins Tuesday, when the Court takes up arguments related to the core issue: whether Congress has the constitutional authority to require nearly all Americans to purchase insurance or risk penalties for failing to do so.
— Ed Fensholt