Opening Day on the Affordable Care Act

March 26, 2012
Guest Post

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.

First up was Robert Long, appointed by the Court to argue the position that no party embraced: that a statute from the 1860s – known as the Anti-Injunction Act – prevented the courts from deciding this case until someone paid the amounts owed and sued for a refund.  The Government had argued that the fact that Congress called the amounts owed “penalties” instead of “taxes” – the term the AIA uses – meant that Congress excluded this challenge from the AIA. 

Long countered that the text actually supported him, but before very long the Justices went in another direction.  They seemed to want to be able to rule that the law was not “jurisdictional,” which would mean that because the U.S. did not assert it, the Court could get to the merits.  Long ably explained both how often the Court had said that this law was indeed jurisdictional, and why that should be so.  It was unclear whether the justices were persuaded by Long’s arguments because when Solicitor General Donald Verilli stood up, he was loud and clear that the United States firmly believed that the AIA was jurisdictional and that if it applied, the Court had to dismiss the case.  His concern was not with this case, but with how a ruling giving judges the ability to find exceptions would cause all sorts of problems to the IRS.  He was less convincing when asked how an exception here would not open the floodgates, at least in cases involving other contests over the meaning or applicability of the mandate.

Verilli also had two other problems, one of which emerged right away from a question by Justice Alito.  Was the Government being inconsistent in urging that this was not a “tax” under the AIA, but was a “tax” that the Constitution allowed Congress to impose and on that basis the law was constitutional?  Of course, the answer was that the two are not the same, and no one seemed to want to get more into the merits – for that is for tomorrow – but it was unclear whether he convinced the Court that because Congress called it a penalty, not a tax, that was enough.

The private plaintiffs, who are individuals who do not have health insurance and do not plan to obtain it even in 2014, tried another argument, but that did not seem to find much favor.  In their brief they had contended that they were not challenging the penalty (and hence the AIA did not apply), but only the mandate.  When Long was asked about that, he reminded the Justices that the complaint did seek to enjoin the penalty.  Justice Ginsburg said they could amend the complaint, although it was unclear what that would do to this case.  However, later on it seemed reasonably clear that no one besides Greg Katsis, the lawyer for the plaintiffs, agreed that the mandate could be challenged separately from the penalty attached to non-compliance with it.  Katsis also pointed out that the States were plaintiffs and that they claimed that the individual mandate would cause many more people to go on Medicaid, which gave them the right to sue over the mandate, even though they would not be subject to it.  That position did not visibly attract any of the Justices, in part because that raised some difficult standing issues that no lower court had accepted and would have caused other problems for the Court’s jurisprudence in this area.  Moreover, the Solicitor General had opposed both of these alternative ways to get around the AIA, just as he had argued that the law was jurisdictional and not subject to exceptions beyond those in the statute itself.

In the end, the problem that the Court had at the outset of how to get to the merits, without doing a lot of collateral damage, and write an opinion that could justify that outcome was no closer to a resolution than it was when they began.  It looks like they will find a way out – unless the battle over the merits causes some of the Justices to take refuge in jurisdiction as a way of finding consensus in an election year.