Opening historic oral arguments challenging President Obama's national health care law Monday, justices of the U.S. Supreme Court signaled that they were unlikely to wait several years before deciding on the law's constitutionality.
After months of hype and with protesters on both sides surrounding the courthouse, justices considered a very technical legal question: Does a 19th century statute that bars courts from hearing tax lawsuits until the tax has been paid apply in this case?
Seemingly arcane but potentially devastating to both sides, applying the statute would effectively put off any legal challenges to the health care law until 2015, when penalties would have to be paid by anyone who refused to buy health insurance as the law requires.
Both sides in the case -- the Obama administration, and 26 states led by Florida with the National Federation of Independent Business -- agreed that the statute, known as the Anti-Injunction Act, does not apply to the health care case, albeit for different reasons. Both are eager for the court to rule now, because implementation of the law depends heavily on the so-called individual mandate.
Yet in another health care case, the 4th Circuit Court of Appeals concluded that the act did apply, so the justices appointed an attorney to represent that position. The attorney, Robert Long, made a two-pronged argument -- that the court cannot pre-emptively interfere with tax collection and that the individual mandate to purchase health insurance functions as a tax.
"The Anti-Injunction Act imposes a pay first, litigate later rule that is central to federal tax assessment and collection," Long argued.
During 90 minutes of oral arguments, justices on both sides of the ideological spectrum pushed back against the idea that the act applied in the case of the individual mandate.
Republican-appointed Justice Antonin Scalia challenged Long's warning that a failure to apply the act in this case would open the doors for judges to interfere with tax collection.
"[W]hat's going to happen is you are going to have an intelligent federal court deciding whether you are going to make an exception," Scalia said. To laughter, he added: "And there will be no parade of horribles because all federal courts are intelligent."
On the other end, Democratic-appointed Justice Stephen Breyer said he was sympathetic to part of Long's argument, but skeptical about the idea that the mandate qualifies as a tax.
"Congress has nowhere used the word 'tax,' " he said. "What it says is 'penalty.' "
Another Democratic appointee, Justice Ruth Bader Ginsburg, made a similar point: "This is not a revenue-raising measure, because, if it's successful, they won't -- nobody will pay the penalty and there will be no revenue to raise."
Such statements by two strong liberal voices on the court could spell trouble for one of the Obama administration's main constitutional defenses of the requirement to purchase insurance -- that it's a valid exercise of Congress' taxing power.
The Supreme Court resumes consideration of the case Tuesday at 10 a.m., with two hours of oral arguments on the core question of whether the individual mandate is constitutional.