The U.S. Supreme Court opens today its historic review of President Barack Obama’s health- care law, three days of arguments that might result in the president’s premier legislative achievement being found unconstitutional in the middle of his re-election campaign.
The court will determine the fate of a measure designed to extend insurance to about 32 million people and revamp an industry that accounts for 18 percent of the U.S. economy.
The six hours of planned debate is the most on a case in 44 years. The core dispute -- the law’s upcoming mandate that uninsured people purchase coverage -- comes on the second day.
First, the justices today hear arguments on a seemingly arcane question: Does the penalty for failing to get insurance amount to a tax?
It’s “the sleeper issue of the health-care case,” said Adam Winkler, a constitutional law professor at the University of California at Los Angeles School of Law. “The great constitutional controversy over Obamacare could end with a whimper rather than a bang.”
A 145-year-old law, the Anti-Injunction Act, says courts can’t rule on the legality of federal taxes until they are imposed. For the no-insurance penalty in the 2010 health care law, which takes effect in stages, that comes in 2015. The justices may decide it’s too soon rule on the health law’s constitutionality.
The 90-minute debate on the 1867 law will serve as a prelude for the court’s arguments tomorrow over the marquee issue: whether the Constitution lets government require Americans to either get insurance or pay the penalty.
The mandate is a primary tool the government uses to expand insurance coverage. The question for the court is whether it falls within the scope of Congress’ constitutional authority to regulate interstate commerce.
On the third day of arguments, the justices will hear debate about what should happen to the rest of the law if the insurance requirement is voided. The court also will take up whether the law, by expanding the Medicaid program, unconstitutionally coerces the states into spending more on health care for the poor.
The case marks the first time the high court has considered striking down a president’s signature legislative achievement in the midst of his re-election campaign. Republican candidates, including former Massachusetts Governor Mitt Romney, are campaigning against the measure, saying it should be repealed.
A Bloomberg National Poll earlier this month found that three-quarters of Americans say the Supreme Court will be influenced by politics when it rules, probably in June, less than five months before the presidential election.
The sentiment crosses party lines and is especially held by independents, 80 percent of whom said the court will not base its ruling solely on legal merits. More Republicans than Democrats, by 74 percent to 67 percent, said politics will play a role.
Outside the courtroom, debate heated up over the weekend.
Former Republican presidential candidate Herman Cain led a cheering crowd of Tea Party supporters near the court on March 24 calling for the health care law’s demise.
“We the people are here. We the people are still in charge, and we want our freedom back,” Cain said. More protests are planned outside the court during the arguments.
Senior Obama adviser David Plouffe said yesterday that Americans “don’t want to go re-fight this battle.” On CNN’s “State of the Union” program, Plouffe said, “You ask people, should we go back to square one? People don’t want to do that.”
Both the Obama administration and the law’s challengers -- 26 states and National Federation of Independent Business, an advocacy group -- say the Anti-Injunction Act doesn’t apply.
The justices may not be convinced. They took the unusual step of appointing an outside lawyer, Robert Long of Covington & Burling LLP, to argue before them that the Anti-Injunction Act strips the court of the ability to consider the insurance mandate now. Long will use 40 of the 90 minutes of argument today.
“Courts take jurisdictional issues very seriously,” Winkler said. “Procedure is often more important than substance.”
The court won’t immediately decide whether the Anti- Injunction Act applies and will continue to hear the arguments on other issues.
The law stems from President Abraham Lincoln’s 1862 approval of the nation’s first income tax to raise money to pay for the Civil War.
Americans filed lawsuits in federal courts challenging the government’s right to tax them. Courts started preventing taxes from being collected while the litigation was considered, according to the journal Health Affairs. Congress responded with the Anti-Injunction Act.
Income taxes were later repealed, and then reimposed.
The act took on a prominent role in the health-care fight in September when a federal appeals court in Richmond, Virginia, said the measure required rejection of two challenges to the health law, known as the Affordable Care Act.
The appeals court said judges couldn’t address attacks on the insurance requirement until a penalty had been assessed. Another appellate judge on a different court later reached a similar conclusion. Four appeals courts have ruled on the health-care law so far.