In oral arguments Monday (March 26), justices did not appear persuaded that a 145-year-old law would prevent them from ruling on the constitutionality of the Patient Protection and Affordable Care Act, observers said afterward.
The high court heard arguments for 90 minutes on the first day of what will be six hours of such consideration over three days. Typically, the court schedules only an hour for arguments in a case. The six hours of arguments are the most for a case since 1967, according to the Oyez Project at Chicago-Kent School of Law and the Associated Press.
The time committed to consideration of the health care law seemed to demonstrate the significance the high court lends to a law that has produced deep division in the American public. The measure -- in combination with subsequent federal rules -- not only has elicited widespread opposition because of its requirement that nearly all Americans purchase health insurance but fervent protests against its federal subsidies for abortion and an abortion/contraceptive mandate that critics say violates religious liberty.
The Supreme Court has set aside the following amount of time to consider three more issues in oral arguments the next two days:
-- Two hours Tuesday for the law's "individual mandate" regarding the purchase of health insurance.
-- One and a half hours Wednesday morning regarding whether the whole law should be declared unconstitutional if the "individual mandate" is invalidated.
-- One hour Wednesday afternoon regarding the law's expansion of Medicaid coverage.
The high court tackled in Monday's arguments the effect on the health care law of an 1867 law that bars suits that would block the federal government from assessing or collecting taxes. If the justices were to rule that courts could not consider challenges to the health care law until penalties are imposed, it would be at least 2015 before such a suit could be brought. The health care law does not become fully effective until 2014. Americans would not report their failure to purchase insurance until they did so on their federal tax returns in 2015.
Debate on whether the 1867 law, known as the Anti-injunction Act (AIA), affects the health care law hinges in part on whether the penalty it imposes for failing to have health insurance is a tax.
The AIA applies to the health-care law, Robert Long told the justices, because: "First, Congress directed that the penalty shall be assessed and collected in the same manner as taxes. Second, Congress provided that penalties are included in taxes for assessment purposes. And third, the penalty bears the key indicia of a tax."
The high court appointed Long to argue the AIA applies in this case because the parties -- including the federal government and the states that have sued it over the law -- agreed the 1867 law does not prevent the suit and want the justices to rule now on its constitutionality.
Representing the Obama administration, Solicitor General Donald Verrilli told the justices that Congress "has authority under the taxing power to enact a measure not labeled as a tax, and it did so when it put into the Internal Revenue Code."
Some of the justices expressed skepticism at Long's contention the penalty for failing to have health insurance is a tax.
In the health care law, Congress "has nowhere used the word 'tax,'" said Associate Justice Stephen Breyer. "What it says is penalty. ... And so why is this a tax? And I know you point to certain sentences that talk about taxes within the code and this is not attached to a tax. It is attached to a health care requirement.
"f it's being collected in the same manner as a tax doesn't automatically make it a tax," Breyer said.
Associate Justice Antonin Scalia questioned the argument that the AIA prevents the court from ruling in this case, telling Long, "nless it's clear, courts are not deprived of jurisdiction, and I find it hard to think that this is clear. Whatever else it is, it's easy to think that it's not clear."
The response of the justices seemed hopeful to those who want a decision in the case this year, said some lawyers who oppose provisions in the law and were in the courtroom for the arguments.
"I think what was clear to just about everybody" is that the justices did not believe the Anti-injunction Act "would bar them from hearing this challenge," Jordan Sekulow told Baptist Press. Sekulow is executive director of the American Center for Law and Justice.
"I can't imagine from how they responded today that we would find out in June" they would not rule on the law's constitutionality, Sekulow said.
In addition to its subsidies for abortion, the health-care law has drawn opposition from pro-life Americans, as well as from religious liberty advocates, on other counts. For instance, the law requires insurance plans in state exchanges to not disclose their abortion coverage until people are enrolled in their plans.
The law also mandates that all plans cover contraceptives and sterilizations as preventive services without cost to employees. This includes contraceptives, as defined by the federal government, that can cause abortions of tiny embryos. The rule regarding that mandate has a religious exemption critics find woefully insufficient.
Hundreds of demonstrators gathered outside the court building Monday before and after the oral arguments. Supporters of the health care law dominated, led by a religious coalition. A small group of pro-life, Bound 4 Life participants -- with red tape across their mouths -- stood next to the law's advocates in prayer.
Tom Strode is Washington bureau chief of Baptist Press. Get Baptist Press headlines and breaking news on Twitter (@BaptistPress), Facebook (Facebook.com/BaptistPress) and in your email (baptistpress.com/SubscribeBP.asp).
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