Jonathan Ernst / ReutersHealth care overhaul supporters rally on the sidewalk outside ongoing legal arguments over the Patient Protection and Affordable Care Act on March 26 at the Supreme Court.
“If there were any members of the court who were looking for an off ramp – who did not want to decide this case now during an election year, this would have been the way to go,” said NBC's Pete Williams after hearing the first day's arguments. But “none of them seem to want to take that,” he said.
At issue Monday was a law called the Anti-Injunction Act. Does that law require that those who challenge the penalty for failing to buy insurance actually pay the penalty first? That won’t occur until 2015, after the insurance purchase requirement takes effect.
The question hinged on the justices accepting the contention that the penalty is effectively a tax.
AUDIO ONLY: The Supreme Court takes up the fate of the Obama administration's overhaul of the nation's health care system. Listen to the entire oral arguments from day one.
“I don’t believe there’s a single justice on the court who believes that it’s a tax. End of that question. So we’re obviously going to go on to the main event which is the individual mandate which will be argued tomorrow,” Williams said.
Monday’s argument was the prelude for the main event: Tuesday’s two hours of argument over whether Congress has the power to require that almost every American purchase health insurance.
Solicitor General Donald Verrilli told the justices, "This case presents issues of great moment, and the Anti-Injunction Act does not bar the Court's consideration of those issues."
Read the transcript of Monday's oral argument
One justice, Samuel Alito, focused on the apparent inconsistency in the government's argument that the penalty is not a tax, under the terms of the Anti-Injunction Act -- and yet the government also will claim in Tuesday's oral argument that when Congress created the individual mandate and the penalty for failing to buy insurance, it was acting under its constitutional power to tax.
Verrilli said, "Congress has authority under the taxing power to enact a measure not labeled as a tax ... ."Art Lien/AFP/Getty ImagesThis courtroom sketch by Art Lien shows Solicitor General Donald Verrilli speaking to Justice Antonin Scalia on March 26, 2012 as he argues his case before the Supreme Court.
In a question to Verrilli, Alito said, "Today you are arguing that the penalty is not a tax. Tomorrow you are going to be back and you will be arguing that the penalty is a tax. Has the Court ever held that something that is a tax for purposes of the taxing power under the Constitution is not a tax under the Anti-Injunction Act?"
Verrilli replied, "No, Justice Alito, but the Court has held... that something can be a constitutional exercise of the taxing power whether or not it is called a tax."
Click here to listen to that exchange between Verrilli and Justice Alito
He said, "the nature of the inquiry that we will conduct tomorrow is different from the nature of the inquiry that we will conduct today. Tomorrow the question is whether Congress has the authority under the taxing power to enact it" and the precise words used in the law don't have a crucial effect on that question.At least two justices, Stephen Breyer and Ruth Bader Ginsburg, seemed to accept the government's contention that the penalty was not a tax, with Ginsburg saying "this is not a revenue-raising measure, because, if it's successful, they won't -- nobody will pay the penalty and there will be no revenue to raise"
Click here to listen to that exchange between Long and Justice Ginsburg
Since the plaintiffs challenging the ACA had not made the Anti-Injunction Act argument, the justices appointed lawyer Robert Long to argue for the position that no one can file suit against the ACA’s individual insurance mandate until after the penalty on those who fail to buy insurance has been assessed.
Art Lien/AFP/Getty ImagesThis courtroom sketch by Art Lien shows attorney Robert A. Long speaking March 26, 2012 as he argues his case before the Supreme Court.
Long pointed out in his brief that the text of the ACA says the penalty imposed on people who don’t purchase health insurance shall be “assessed and collected in the same manner as taxes” -- so it is effectively a tax.
Long also said if Congress had wanted to create an exception to the Anti-Injunction Act in this case it would have done so when it passed the ACA in 2010.
Related: Individual mandate will be in Supreme Court spotlight
He argued that for the Supreme Court to decide now on the constitutionality of the ACA “would be contrary to the policy that courts avoid deciding constitutional issues unless it is necessary to so do.”nd it would premature, he said, for the court to act since it’s possible that Congress “could amend or repeal the Affordable Care Act at some point before penalties are assessed and collected, beginning in 2015. An amendment (to the law) could avoid the need for this Court to decide the constitutional issue presented in this case.”
Supreme Court takes up healthcare (2:08)
Mar. 26 - President Barack Obama's sweeping healthcare overhaul goes before the U.S. Supreme Court. Deborah Lutterbeck reports.
But despite those arguments there’s tremendous pressure on the high court to resolve the uncertainty over the health care overhaul now -- since many of the provisions of the law are interrelated and the court itself has created the expectation that it will finally settle the constitutional issue.
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Arguing the case on Monday for 90 minutes were Long, Verrilli, and former Assistant Attorney General Gregory Katsas, now in private practice, representing the state of Florida and other states and the National Federation of Independent Business.NBC's Pete Williams contributed to this report.
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