And so it begins. Today, at 10:00 a.m., the United States Supreme Court will hear the first of four questions it has set aside to discuss regarding the Patient Protection and Affordable Care Act (ObamaCare). The official name of the case is Dept. of H&HS, et. al v. Florida, et al.
Highlighting the magnitude of the case is the fact that although the Supreme Court usually takes only an hour for oral arguments in a case, it has set aside an hour and a half to discuss just the first part of this four-part, six-hour marathon.
The question presented today is, “Whether the suit brought by respondents to challenge the minimum coverage provision of the Patient Protection and Affordable Care Act is barred by the Anti-Injunction Act, 26 U.S.C. 7421(a).”
In the relevant parts, the Anti-Injunction Act (AIA) prohibits suits aimed at restraining taxes. It says that except as specifically provided elsewhere, “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed.”
Legal experts will tell you the question is a “jurisdictional” one, meaning that it relates to the power of the court to hear the case at any given moment. In plain English, if the Supreme Court decides that the AIA applies, it will not be able to hear this case until the mandate goes into effect in 2014 and the first “taxes” are assessed, probably in April of 2015.
The theory behind such a law is that U.S. courts only hear “cases and controversies.” Therefore, a real “injury” must occur before a court will hear a case.
The states challenging the law will argue that, since they are not individuals, AIA should not apply them. Remember that the states are required to incur expenses in preparation of the law coming into effect. On the other hand, keep in mind that the challenge is against the individual mandate alone.
It is interesting to note that the Obama Administration at first argued that the AIA applied and so the suit must be barred, but it has changed its mind so that now both sides agree and it will actually argue that the suit should go on. Therefore, in another extraordinary step, the Court has appointed Robert A. Long, a partner at the Washington, D.C., law firm Covington & Burlington LCC, to argue for the AIA’s applicability.
Solicitor General Donald Verrilli for the government and Gregory Katsas for the states will argue the suits should be heard now.