The Court has allotted six hours for arguments, and while it doesn’t seem like much time for such a contentious and crucial issue, bear in mind that the court typically grants a case just one hour. This is the most argument time given in 47 years.
So what questions will the Court answer? What will the lawyers argue? How might the Justices vote? I have a seat inside the courtroom for all six hours of arguments, so expect a full report on the proceedings, as well as a preview each morning of the question before the Court that day. For now, however, we’ll take a general look at the schedule, the questions, and the basic arguments each side will make, in preparation for Obamacare’s big day in court.
Is the financial penalty for not complying with the individual mandate a tax?
When states and citizens first began to challenge the individual mandate in district courts, the federal government’s initial defense was that the plaintiffs had no legal standing to sue until 2014, when the law has been fully implemented. They based their claim on the premise that the penalty for noncompliance with the individual mandate is a tax. Thanks to the Tax Anti-Injunction Act (AIA), an individual may not bring a lawsuit against the government to stop a tax from being collected; the individual must pay the tax in question, and then sue after-the-fact for a refund.
Essentially, the federal government argued that because the penalty is a tax, the plaintiffs had no standing to sue until after the tax had been assessed. The district court didn’t find this compelling, and ruled against the feds. They dropped that defense, and therefore will not be arguing this point before the Court.
Instead, the Supreme Court has assigned a lawyer to argue that the mandate penalty is a tax. It may seem like a pointless endeavor to address this question if none of the parties take the “yes” view, but the argument is for the Court’s benefit. If the Court holds that the penalty is a tax, then they don’t have to issue a ruling on the individual mandate until 2014. This question provides them a way to escape ruling on the more controversial elements of the suit – at least until a later date.