By Alan B. Morrison, Lerner Family Associate Dean for Public Interest and Public Service Law; Professorial Lecturer in Law. Morrsion filed a brief on behalf of former IRS Commissioners Mortimer Caplin & Sheldon Cohen urging the Supreme Court to dismiss the challenges to the individual mandate in the Affordable Care Act on the ground that the Anti-Injunction Act deprived the courts of jurisdiction to hear the case. This post is part of an ACSblog online symposium around oral arguments in the Affordable Care Act case.
There was one thing that was clear on opening day of the battle over the Affordable Care Act: all of the Justices seemed to want to reach the merits of the constitutionality of the individual mandate. Their problem was how to get there and how to write an opinion justifying that result.
Before getting to the argument, there was one surprise: there was no line for seats in the lawyers section as late as 9:15. Apparently, everyone thought that everyone else would be there, and so almost no one showed up. But that is almost certainly not going to be the case when the merits come up at 10:00 a.m. on Tuesday.
Listening to the whole 90 minutes, not a single Justice expressed any concern that prudence would caution against deciding a case in which no taxpayer would owe a penny until 2015, perhaps because they saw the enormity of the issues and how important the Government says it is to decide these issues now. It surely can’t be because the merits issues are easy or not politically-charged. Rather, the Court seems to assume that it will have to decide the issues some time, and it might as well do it now, with all the arguments made in more than 100 briefs filed on all sides.