ObamaCare at the Supreme Court

Beginning today the Supreme Court is hearing three days of arguments on the constitutionality of the Affordable Care Act. The first issue is whether the Court can even consider the law’s constitutionality now–a legalistic argument that in the words of a lawyer challenging the law is “a kind of practical joke that the court is playing on the public.” The 1867 Anti-Injunction Act requires that a tax can only be challenged after it has been paid. The ACA’s penalty–or is it a tax?–for failing to obtain health insurance does not go into effect until 2014 and would not be payable until federal tax returns are filed in 2015, which could mean the challenge must wait. It’s an argument only a lawyer could love, with the twist as to whether the payment imposed for failure to obtain health insurance is a tax. As the NYTimes explains:

In the health care law, Congress called the required payment a penalty rather than a tax. But the penalty is contained in the Internal Revenue Code, and the health care law says it is to be “assessed and collected in the same manner” as a tax.

Mr. Verrilli, representing the Obama administration, walks a fine line. He has told the court that the administration wants a prompt ruling on the health care law and that the 1867 law should not stand in the way. Yet the administration does not want to damage its ability to rely on the 1867 law in other cases.

There are other complications. Mr. Verrilli’s argument that the penalty is not a tax for purposes of the 1867 law is in potential tension with one he will make on Tuesday, that the mandate was authorized not only by Congress’s power under the commerce clause but also by its power to levy taxes.

Mr. Verrilli argues that the name that Congress gave the payment required for violating the mandate in the health care law — a penalty, not a tax — matters for purposes of the 1867 law but is irrelevant in connection with the constitutional taxing power, where “it is the practical operation of the provision, not its label, that controls.” (emphasis additional)

As I said, it’s an argument only a lawyer could love.

5 thoughts on “ObamaCare at the Supreme Court”

  1. Wow that was odd. I just wrote an extremely long comment but after I clicked submit my comment
    didn’t show up. Grrrr… well I’m not writing all that over again. Anyhow, just wanted to say wonderful blog!

  2. you are actually a good webmaster. The web site loading velocity is
    amazing. It sort of feels that you are doing any distinctive trick.
    Moreover, The contents are masterwork. you have performed a
    wonderful activity on this matter!

  3. Have you ever considered about adding a little bit more than just your articles?

    I mean, what you say is fundamental and everything.
    But imagine if you added some great pictures or video clips to give your
    posts more, “pop”! Your content is excellent but with pics and video clips, this blog could undeniably be
    one of the greatest in its niche. Excellent blog!

  4. Hey! I understand this is somewhat off-topic but I had to ask.
    Does running a well-established website such as yours take a large amount of work?
    I am completely new to running a blog but I do write in my journal every day.
    I’d like to start a blog so I can share my personal
    experience and views online. Please let me know if you
    have any kind of suggestions or tips for new aspiring bloggers.
    Thankyou!

  5. Heya this is kind of of off topic but I was wondering if blogs use WYSIWYG editors or if you have to
    manually code with HTML. I’m starting a blog soon but have no coding
    knowledge so I wanted to get guidance from someone with experience.

    Any help would be enormously appreciated!

Leave a Reply

Your email address will not be published. Required fields are marked *