This week, the Supreme Court is hear­ing argu­ments about the Con­sti­tu­tion­al­ity of the Patient Pro­tec­tion and Afford­able Care Act (PPACA, ACA, or Oba­macare). Audio of Monday’s argu­ment can be heard here. It is fas­ci­nat­ing to lis­ten to the record­ing. The chance to hear a case as it is argued before the high­est court in the land is a treat not to be avoided. One gets a feel for the peo­ple behind the names, the voices and per­son­al­i­ties of a hand­ful of peo­ple (except for Jus­tice Clarence Thomas, whose voice is not heard) who decide some of the most vital issues of our day.  It sounds like a polite and eru­dite con­ver­sa­tion among witty but seri­ous peo­ple. Just like the com­ments on Log­a­rchism. On a good day, any­way. This is con­sti­tu­tional law at its finest.

The Supreme Court is hear­ing a num­ber of law­suits simul­ta­ne­ously, hav­ing con­sol­i­dated them into a sin­gle case before the Court. The suits deal pri­mar­ily with the indi­vid­ual man­date, the require­ment that all Amer­i­cans be cov­ered by med­ical insurance.

On Mon­day, argu­ment cen­tered around whether the Court should hear the case now, or wait until the indi­vid­ual man­date goes into effect in 2014. The Obama Admin­is­tra­tion argued that the Court should take up the case imme­di­ately, and not post­pone the review under the Anti-​​Injunction Act. Solic­i­tor Gen­eral Don­ald Ver­rilli said, “This case presents issues of great moment and the Anti-​​Injunction Act does not bar the Court’s con­sid­er­a­tion of those issues.” The Jus­tices seemed to agree. It appears likely the Court will issue an opin­ion on the Con­sti­tu­tion­al­ity of the law.

There was an inter­est­ing polit­i­cal dichotomy in these argu­ments. The Admin­is­tra­tion argued that nei­ther the require­ment to pur­chase insur­ance, nor the penalty for not buy­ing insur­ance, is a “tax” — and there­fore, the Anti-​​Injunction Act does not apply, and con­sid­er­a­tion of the law­suit can go for­ward before this penalty is actu­ally assessed on any­one. Con­ser­v­a­tives main­tain that the Afford­able Care Act does raise taxes, so one might think they’d like the indi­vid­ual man­date, or the penalty, to be viewed as a tax — yet they would also like to push ahead with the law­suits against the ACA.

One inter­est­ing aspect in lis­ten­ing to the argu­ments before the Court is that many of the Jus­tices seemed anx­ious to push on both sides of an issue. Jus­tices Ruth Bader Gins­burg and Sonia Sotomayor in par­tic­u­lar tended to ask prob­ing ques­tions both for and against the ques­tion of whether suits against the ACA would fall under the Anti-​​Injunction Act.

Today, Tues­day, the heart of the law­suits will be argued — whether the indi­vid­ual man­date is con­sti­tu­tional. Ana­lysts and com­men­ta­tors will lis­ten intently to today’s argu­ment, comb­ing it like a detec­tive search­ing for fin­ger­prints, des­per­ate to find clues to the direc­tion each of the Jus­tices is likely to lean on the final decision.

Mas­simo Cal­abresi has an inter­est­ing piece explain­ing why the suit is about Con­gress, not about Pres­i­dent Obama. Though the ACA is com­monly referred to as “Oba­macare,” the pow­ers and Con­sti­tu­tional lim­its of the Pres­i­dent are not at issue. The ques­tion is not whether the Pres­i­dent, through the Exec­u­tive Branch, has the right to enforce the indi­vid­ual man­date. The ques­tion is whether Con­gress, through the Leg­isla­tive Branch, has the right to leg­is­late the indi­vid­ual man­date. Cal­abresi writes, “many con­ser­v­a­tive jurists find it dif­fi­cult to chal­lenge the health care reform law’s con­sti­tu­tion­al­ity,” because

… Con­gress has a lot of power when it comes to con­trol­ling com­merce in Amer­ica, and Repub­li­can appointees from the D.C. circuit’s Lau­rence Sil­ber­man to for­mer clerk to Jus­tice Antonin Scalia and 5^th Cir­cuit con­ser­v­a­tive Jef­frey Sut­ton have argued pow­er­fully that Con­gress is well within its bounds in reg­u­lat­ing health care, which rep­re­sents one-​​sixth of the national economy.

As with many com­men­ta­tors,  Cal­abresi goes on to spec­u­late on how some of the more con­ser­v­a­tive Jus­tices might even­tu­ally rule on the law itself — and, as many com­men­ta­tors do, ended by mak­ing no firm prediction.

What are your thoughts? Do you, Gen­tle Reader, have an opin­ion on how you think the final deci­sion will fall? Do you have any thoughts on what to watch for in today’s argu­ments in try­ing to divine which way a given Jus­tice leans?

Related arti­cles

• Health Care And The SCOTUS Day 1: Looks Like We’re Get­ting An Answer(thinkprogress​.org)

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• Monday’s 7 most telling moments(politico​.com)

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• Con­sti­tu­tional Show Down(thedai​ly​beast​.com)

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• Court begins review of Obama’s health care over­haul(ctv​.ca)

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• Supreme Court likely to reach mer­its of indi­vid­ual man­date in Afford­able Care Act(dai​lykos​.com)

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• The Solic­i­tor Gen­eral argues that fail­ure to com­ply with the require­ment to buy health insur­ance does not equal a vio­la­tion of fed­eral law. (alt​house​.blogspot​.com)
• Roberts notes law didn’t stop SCOTUS before (politico​.com)
• Three things we learned about the Supreme Court and health care (short​form​blog​.com)