Supreme Court considers: Did health care law challenge come too soon?

Olivier Knox

The Supreme Court took a step closer Monday to ruling on the constitutionality of President Barack Obama's landmark health care law, with the justices giving no outward sign that they were inclined to sidestep the bitterly contentious issue ahead of the November elections.

As hundreds of demonstrators marched and chanted outside the templelike court building a stone's throw from Congress, the nine black-robed justices heard roughly 90 minutes of argument. Monday's hearings focused on whether the monetary penalty imposed on those who do not purchase insurance is a "tax." Under the Anti-Injunction Act, individuals must pay a tax before they can challenge it in court. This would require the court to hold off ruling on the law until it is in full effect in 2015.

Some experts have called the Anti-Injunction Act a face-saving escape clause allowing the court to set aside the explosive issue until after the elections, but the justices themselves did not seem to want to avoid the fray.

"What is the parade of horribles that you see occurring?" Justice Sonia Sotomayor, an Obama appointee, skeptically asked the court-appointed lawyer arguing for a delay, Robert Long.

Long argued, in part, that the judges should resist passing judgment on the law because it would open the floodgates for other, unrelated cases involving taxes brought by "clever" plaintiffs. But conservative Justice Antonin Scalia shot back that "there will be no parade of horribles because all federal courts are intelligent" and will impose common-sense limits, drawing a laugh from the gallery.

"Justice Scalia, I mean, honestly, I can't predict what would happen, but I would say that not all people who litigate about federal taxes are necessarily rational," replied Long, setting off another small ripple of laughter.

The argument then turned to whether the penalty in question was a tax. "This is not a revenue-raising measure, because, if it's successful, nobody will pay the penalty and there will be no revenue to raise," said Justice Ruth Bader Ginsburg.

The court's conservative members did not challenge her take—but they sharply questioned whether the Obama administration's legal strategy sought to have it both ways.

Conservative Justice Samuel Alito led the charge, asking Solicitor General Donald Verrilli: "Today you are arguing that the penalty is not a tax. Tomorrow you are going to be back and you will be arguing that the penalty is a tax."

Tuesday, the court will consider whether an individual mandate is permissible. The opposition will hold that it is an unprecedented act of government overreach, while the Justice Department will counter that it's a routine exercise of Congress' power to regulate interstate commerce.

"The nature of the inquiry that we will conduct tomorrow is different from the nature of the inquiry that we will conduct today," replied Verrilli.

At one point, though, after Verrilli repeatedly referred to the penalty as a "tax," Justice Stephen Breyer jumped in: "Why do you keep saying 'tax'?" he asked. "Tax penalty," corrected Verrilli.

The real legal fireworks were expected on Tuesday when the justices take up the validity of the "individual mandate" at the core of the law.

The Supreme Court will most likely hand down its decision in late June, right in the middle of the heated 2012 presidential election.

Amid passionately partisan predictions of how the justices will rule, Democratic Sen. Richard Blumenthal said he thought the court would ultimately uphold the law but cautioned against absolute certainty.

"There's always doubt," he told Yahoo News during a walk from the court to one of the Senate office buildings nearby.

"I've done this for three decades, I've argued four times in the Supreme Court. I've never known how it was going to come out before the court made a decision—no matter what the questions were," Blumenthal said with a smile.

Asked whether Tuesday was likely to be the big day, the senator replied: "This is the United States Supreme Court. Every day is a big day."

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