The Court tees up the health mandate

Jacquelyn Martin / AP

Amid sure signs that the Supreme Court Justices are deeply interested in the constitutionality of the new health care law’s key sections, and definite signs that they have been studying up for the task, they moved on Monday to get beyond the preliminaries and get set for Tuesday’s crucial two-hour hearing.

In a hearing yesterday that lasted just under 90 minutes, the Court seemed unwilling to postpone by as much as three years their ultimate encounter with the mandate that would require virtually all Americans to obtain health insurance or pay a penalty. That elevated the importance of Tuesday’s review of the mandate.

The first of three days of argument on the Affordable Care Act was on the complex subject of courts’ authority even to hear the challenge. The first lawyer the Justices heard told them they had no authority to decide the issue of the mandate’s validity, because none of the challengers had a legal right to challenge it in court. From every indication, the Court did not seem to take that advice.

There were many questions about what the mandate is, and how it would work, but an observer could not reliably draw any conclusions about where the Justices stand on that – except that it was very apparent that they had dug deeply into the written briefs, and knew what the arguments are.

The opening day had to do mainly with the scope of an 1867 law, the Anti-Injunction Act, that flatly bars anyone from suing in any court to try to stop the federal government from collecting tax revenues. That is not a constitutional limit on court power; it is a federal law only, and Congress could change it if it wished.

On the theory that the mandate and its attached penalty are together a form of tax, Washington attorney Robert A. Long, Jr., told the Court at the beginning that “there is no reason to think that Congress made a special exception” from that Act for the mandate and penalty.

But it was soon evident that most of the Justices harbor deep doubts about whether those provisions are tax laws at all. If they were to conclude that they are not, then the 1867 law will be beside the point, and the mandate’s constitutionality will be directly at issue.

Even if the mandate and penalty are found to be a kind of tax measure, the hearing indicated, that may still not prevent the Justices from the constitutional question. They pondered three or four different ways that courts could hear a tax case without encouraging a rash of lawsuits trying to stop the Treasury from gathering tax money. “Intelligent” judges, Justice Antonin Scalia said, would be able to limit the threat of a raid on the Treasury by limiting the scope of such challenges. Other Justices said that taxpayers might have to try other remedies first before suing.

In the context of the Affordable Care Act case, these comments were important, because they added to the impression that the Court was going to get beyond the procedural hurdle of the 1867 law.

Although most of the Justices’ questions about the mandate were being held back for Tuesday’s argument, there were a number that suggested some members of the Court were skeptical about arguments on each side of that issue.

For the government, the Justices, in voicing doubts that the mandate really is about taxation, dropped hints that the mandate probably has little chance of being upheld as an exercise of Congress’s taxing power – the government’s backup constitutional theory. (The government’s preferred defense is that the mandate came under Congress’s power to regulate commerce.)

For the challengers, the members of the Court did not seem to accept the argument that the mandate could be separated from its penalty, so that the mandate could be nullified as a stand-alone attempt to regulate how people pay for their medical care. Chief Justice John G. Roberts, Jr., said bluntly that separating the two “does not make much sense….Why would you have a requirement that is completely toothless?”

As the day’s hearing came to a close, the Chief Justice told the audience: “We will continue argument in this case tomorrow.” This time, the mandate and its penalty will not be side issues; they will be the main event. (Constitution Daily will report tomorrow on the Tuesday argument.)

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearing house of information about the Supreme Court’s work.