A Decision Is Coming

The Supreme Court opened hearings today on the Patient Protection and Affordable Care Act—PPACA if we're going to be technical—but more commonly known as Obamacare. The six hours slotted for oral arguments are spread out across three days, and while the constitutionality of the individual mandate is the main issue at stake, there will be a host of other topics discussed, ranging from severability (whether the rest of the law can stand if the mandate is struck down) to whether Congress was within its bounds when it redefined Medicaid eligibility to include swaths of new people currently uninsured.

I was outside the court this morning talking with protesters rallying for and against the bill (more on that to come later) but Prospect alum Adam Serwer was inside for Mother Jones listening to the judges debate the first issue at hand: can they even decide on the qualms with the law or do they need to wait until after 2014 when ACA is fully in effect? According to the 1867 Tax Anti-Injunction Act, the courts are blocked from hearing a case until someone has begun to pay the tax in question. The financial penalties for the bill won't be levied until 2015, so the justices could use the measure as an excuse to punt their decision off for a few years, leaving their ruling on the contested case for a time when a presidential election is not on the horizon.

But as Serwer writes, the justices' questions this morning gave a clear sign that they don't intend to punt on issuing a decision.

Even the Democratic appointees on the court appeared skeptical that the individual mandate to buy health insurance was a tax covered by the Tax Anti-Injunction Act. 

"Aren't you trying to rewrite the statute in a way?" Justice Elena Kagan asked Long, suggesting he was stretching the definition of a tax.

…The justices seemed clear that they would not duck the historical moment by avoiding a ruling on Obamacare under what might be called a tax dodge. Judging by their remarks, the Obama administration is likely to see a verdict on its signature domestic program prior to the November election. But there's still no telling what that verdict might be.

That's the same read that The New Republic's Jonathan Cohn got from the court this morning. "All the justices seem eager to decide this case, rather than punting on jurisdictional grounds," he wrote.

It's not too surprising to see the court tracking this way. Neither the plaintiffs nor the defendants thought the Anti-Injunction Act was relevant to the case, so the Supreme Court had to hire an outside attorney, Robert Long, to air the case. Obama's Solicitor General Donald B. Verilli Jr. in fact argued before the court Monday that the justices shouldn't read the individual mandate as a tax in this sense, a clear sign that the administration thinks the court is on its side and wants to dispatch with the constitutionality questions before the president's reelection campaign this fall. Whether that optimism is well-founded or misguided remains to be seen, with the Supreme Court not expected to issue their final ruling until June.

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