First Day of Supreme Court Arguments on the Affordable Care Act Focuses on the Anti-Injunction Act

On Monday, the Supreme Court heard the first of three days of oral argument regarding the Affordable Care Act (ACA). This first day addressed a threshold question: Can the Court reach the constitutional challenges, or are the challenges premature under the Anti-Injunction Act of 1867?

The Anti-Injunction Act provides that suits seeking to restrain "the assessment or collection of any tax" cannot "be maintained in any court by any person" until the tax takes effect. This limitation applies to the ACA if the penalty for an individual's failure to comply with the mandate to buy insurance is a tax. The limitation furthermore cannot be waived if the Court considers it to be jurisdictional. Is the penalty a tax? Is the limitation jurisdictional? These are the questions the Court wrestled with at oral argument. If both answers are yes, the constitutional challenges cannot be brought until 2014, when the penalty first applies.

None of the parties wants the Anti-Injunction Act to bar the Court's consideration of the constitutional challenges until 2014. The challengers want the constitutional question decided now, before everyone is required to buy insurance. The government also wants the issue decided now, before it and the states spend more time and money implementing a statute that may be struck down. Thus, although the United States had raised the Anti-Injunction Act in its answer to the complaint, it abandoned that argument before the Court. 

Because none of the parties defended application of the Anti-Injunction Act, the Court appointed an outside lawyer (Robert A. Long) as a true amicus curiae to argue the point. The government (represented by Solicitor General Donald B. Verilli, Jr.) argued that the Act did not apply as a matter of statutory interpretation, but that if it does apply, it is jurisdictional and cannot be waived. The parties challenging the mandate (represented by Gregory G. Katsas) argued that the Act is not jurisdictional and hence can be, and was, waived by the government. 

For those who want to dig into the issues, the audio recording and written transcript of the arguments are available on the Supreme Court's website.

While it is difficult to predict how the Court will rule in any case, the tenor of the Justices' questioning suggests that most of the Justices believe the Anti-Injunction Act does not bar them from considering the constitutional challenges to the ACA for one reason or the other. 

Today, the Court hears oral argument on the issue that many consider to be the critical issue in these proceedings – the constitutionality of the individual mandate. The argument starts at 10 a.m. EST and is expected to take two hours.