Day 1: Guide to the Supreme Court

The first day’s arguments focused on the Anti-Injunction Act and whether the court can rule on the case before a penalty is imposed on those who do not have health insurance. KHN’s reporter inside the court, Stuart Taylor, tells Jackie Judd that all the justices, except one, seemed eager to ask questions.

→ Listen to audio of this interview

→ Transcript of the day one arguments on the health law at the Supreme Court (PDF)

→ Listen to day one audio of the health law arguments at the Supreme Court

Transcript of Taylor and Judd’s conversation:

Jackie Judd: Good day and welcome to “Health Reform and the Court.” I’m Jackie Judd. This is day one of the historic hearings at the Supreme Court on whether the health reform law is constitutional. The focus today — the Anti-Injunction Act and a question of timing. Can the court even rule before a penalty is imposed on those who do not have health insurance? Sitting in the chamber was Stuart Taylor, a lawyer, author and contributor to many publications including the National journal. He joins us now. Welcome, Stuart.

Stuart Taylor: Nice to be with you.

Jackie Judd: Before the arguments, the atmospherics. What was the moment like for this much-anticipated hearing?

Stuart Taylor: It was electric, both inside and outside the courtroom. Outside, there were hundreds, probably thousands of demonstrators for one side or the other. Mostly in favor of the health care law, I’d say. Inside the court there were more than 100 reporters, I doubt they’ve ever had as many reporters. And the chamber was jammed.

Although the justices didn’t let on that it was anything other than routine, the whole atmosphere –scheduling 6 hours over 3 days in one case made a statement. And they did, in order to sort-of enforce their usual routine, they summarized two new decisions from the bench before they even got to the health care arguments, which delayed things about 13 minutes.

Jackie Judd: Both the states and the federal government actually agree on the question that was debated today: Can the justices rule now [on the law] or do they have to wait until 2013. So the court made a slightly unusual move by bringing in a friend-of-the-court lawyer. What were the highlights of the arguments?

Stuart Taylor: Well, the specialist was Robert A. Long. And he argued that the Anti-Injunction Act applied. The Anti-Injunction Act basically bars any lawsuit to prevent a tax, with some exceptions — to stop a tax until the tax has actually been imposed, until there have been penalties. In this case, it wouldn’t be until 2015. His argument was dozens of cases, statutory citations. The law is basically ambiguous and he was making the best case that could be made that, “Yes, this is a tax for purposes of the Anti-Injunction Act and therefore, you have to wait.” A wrinkle in that was that the Solicitor General — the government — had said “It’s not a tax, and even if it is, we aren’t objecting to it.” But that was the essential setup.

Jackie Judd: And what justices were you most interested in hearing from, in terms of their questions and what you might divine from those questions.

Stuart Taylor: Usually when you go into a case like this, you kind of have a little scorecard going: okay, who is going to come down on which side. You’re never sure but…

Jackie Judd: I’m not going to ask you to predict.

Stuart Taylor: …but in this case, I was less sure than I’ve ever been before. Eight of the justices — Justice Thomas hasn’t asked a question in five years or more — eight of the justices peppered all three lawyers with questions coming from every conceivable angle. It was hard to discern any of them showing a clear intent to vote one way or another.

One question I thought that got to the complicated nature of the process better than any was asked by Justice Alito. He was speaking to Donald Verrilli, the solicitor general who is arguing for the government, and he said more or less in so many words: “Mr. Verrilli, today you’re arguing that the penalty for not complying with the individual mandate for not having health insurance is NOT a tax. Tomorrow, you’re going to be back here arguing it is a tax.” Which was true.

And the question was sort of have we ever held that you can have a thing that’s not a tax for today but it is a tax tomorrow, basically. And Verrilli gave a very good answer, which was, “Yes, that is what we’re arguing, because tomorrow I’m going to be talking about the constitutional taxing power of the United States, which is very broad. Today, I’m talking about an act of Congress called the Anti-Injunction Act, which is much more narrow. And therefore tax can mean different things in those two contexts.”

Jackie Judd: You mentioned tomorrow, it does bring in the more central question of the constitutionality of the law, especially the mandate. Give us a little preview.

Stuart Taylor: That’s the heart of the case tomorrow. The main challenge is that the requirement that individuals who don’t otherwise have health insurance — through their employer, say — must buy health insurance unless they qualify for an exception because they can’t afford it or for various other reasons. That, or they pay a penalty to the IRS. That is the issue tomorrow, that is the issue that has been central to the public debate all along.

The government claims two powers as the basis for imposing those requirements: the power to regulate interstate commerce, which has gotten the most attention, the power to lay and collect taxes, which is the one I just referred to in the context of Justice Alito’s question. They say those powers are both very broad, broad enough to support this. The attackers basically say as to the Commerce Clause, “Never before has the government imposed an obligation on individuals to buy something they don’t want to buy simply because they live in the United States.” And that that goes too far.

Jackie Judd: Thank you very much.

Stuart Taylor: Thank you.<br clear=”all” />

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