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The aide acknowledged a nervousness among Democrats about the potential for overturning the law — “nobody wants to deal with the consequences” — but felt confident that Democrats would be able to defend their support for the law regardless.
Republicans were eager to trumpet the case, and their opposition to the individual mandate in particular, pointing to polls showing more than 70 percent of people consider the law unconstitutional.
Republican Senators at a press conference outside the court Monday used the opportunity to talk down the law regardless of how the court rules.
“There are lots of things you can do that are constitutional that aren’t the right thing to do,” said Sen. Roy Blunt (Mo.), a member of the GOP leadership team.
They also see the issue as a political win for them in November, as it was in the 2010 midterm elections.
“The principle of the federal government overreach is alive in political halls, whether or not the court legally so concludes,” Sessions said.
Senate Minority Leader Mitch McConnell (R-Ky.) will lead a press conference with state attorneys general fighting the law today after the court arguments, underscoring the GOP’s confidence in its position.
Back in the courtroom, justices on both the liberal and conservative wings of the court appeared to swat away the argument that an 1867 law should apply and effectively delay the case until 2015, when people who fail to buy insurance would be charged a penalty. The 1867 law prohibits people from filing a lawsuit against tax provisions until after they have already paid the tax in question.
While there were few hints at how the justices would look at the broader issues, there were a few sharp moments that crackled in the courtroom. The sharpest exchange hinting at the core of the case came between Justice Samuel Alito and Verrilli.
“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,” Alito said.
Verrilli contended that because Congress did not call the penalty a “tax” in the health care law, it falls outside the 1867 law, which is aimed at preventing lawsuits against federal revenue measures important to keeping the government running. But he argued that the law is nonetheless a “tax penalty” otherwise permissible under the Constitution, which he said was a separate question.
At one point, Verrilli kept calling the penalty a “tax” — correcting himself to “tax penalty” after Justice Stephen Breyer caught him on it — to laughter from the court.
Verrilli essentially argued that the court doesn’t need to reinterpret the 1867 law, just bypass it.
Robert Long, an attorney hired by the court to argue that the 1867 law did apply, warned that opening up an exemption could invite a flood of lawsuits whenever a tax provision is in question.
But several of the justices questioned that idea, positing that a narrow exemption could be granted in this case — as the court did in several other cases from the New Deal era.