Day One: Has All This Fuss Been For Nothing?


Think of the long-running litigation over the ACA, and you probably think of the “individual mandate” requiring most Americans to purchase health insurance:  Is it constitutional?  Will the Supreme Court strike it down?  If so, will the rest of the ACA fall with it?

Those questions are at the heart of the case.  But before we get there, we had today’s preliminaries:  With Cabinet Secretary Kathleen Sebelius, Virginia Attorney General Ken Cuccinelli, and a host of other political power brokers looking on, the Justices heard 90 minutes of oral argument on whether a 150-year-old statute called the “Anti-Injunction Act” takes away the Court’s power to hear the case at all.  If the Court rules that the Act applies, then the last two years of litigation will be out the window, and the parties will have to come back and do it all over again starting in 2014.

Fair warning:  Today’s arguments were far more technical and legalistic than any we’ll see for the rest of the week.  But they are important to understand.  Bear with me and, after the jump, I’ll walk through the parties’ arguments and how the Justices reacted.  Up front, my takeaway is this:  While it’s always difficult to predict how a case will come out from the Justices’ questions alone, at least five suggested that they want to brush aside the Anti-Injunction Act, reach the merits, and rule on the individual mandate’s constitutionality.  I think the odds are better than 50-50 that the Court will take that approach, and that this case won’t have to start all over again two years down the road.

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