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At the start of historic arguments on attempts to overturn President Barack Obama’s signature health care law, both sides at least agreed on one thing: They want the case tried now. And the justices seemed inclined to agree.
Justices on both the liberal and conservative wings of the court pressed attorneys for ways around an 1867 law that prohibits people from filing a lawsuit against tax provisions until after they have already paid the tax in question.
Both sides of the lawsuit agree that an exemption should be granted, but for different reasons, although the court appointed an attorney to defend the notion — held by a lower court — that the case won’t be ripe until 2015.
The sharpest exchange hinting at the core of the case came between Justice Samuel Alito and Solicitor General Donald 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.
The argument amounts to allowing the case to go forward on a technicality. Otherwise, the health care law could potentially go unchallenged until 2015, when individuals would start incurring penalties if they don’t buy insurance.
Verrilli contended that because Congress did not call the penalty a “tax” in the health care law, it falls outside the 1867 law, the Anti-Injunction Act, which is aimed at preventing a flood of lawsuits against federal revenue measures important to keeping the government running. But he argued that the law is a “tax penalty” otherwise permissible under the Constitution.
At one point, Verrilli kept calling the penalty a “tax” — correcting himself to “tax penalty” after a justice caught him on it — to laughter from the court.
Verrilli essentially said that the court doesn’t need to reinterpret the 1867 law, just ignore it.
At one point, Justice Anthony Kennedy — potentially the swing vote in the whole case — punctured the tension in the room.
“Don’t you want to know the answer?” he asked of how the court would rule on the question of the 1867 law.
“Justice Kennedy, I think we all want to know the answer to a lot of things in this case,” Verrilli replied.
Robert Long, the attorney hired by the court, 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.
And Justice Stephen Breyer pressed repeatedly on whether the penalty should be considered a tax, even though it is administered through the tax code.