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 5th 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?
- The Solicitor General argues that failure to comply with the requirement to buy health insurance does not equal a violation of federal law. (althouse.blogspot.com)
- Roberts notes law didn’t stop SCOTUS before (politico.com)
- Three things we learned about the Supreme Court and health care (shortformblog.com)