Day One Q & A

Welcome back!  Please post any questions you have on today’s arguments, or the health care case generally, in the comments below.  Dom will answer them as they come in from 3 to 4 p.m.  (Please refresh your screen periodically by pressing F5, or clicking on your refresh icon, to see new comments and answers.  They will not pop up automatically.)


17 Responses to Day One Q & A

  1. smarotta says:

    Press reports seemed to agree that the Solicitor General had the difficult task of arguing against the Act’s application in this case, while at the same time preserving it as a strong bar against suits in future cases. How do you think he did in striking that balance?

    • domperella says:

      That’s a good observation. As you say, the SG had to argue that the Anti-Injunction Act didn’t apply here. But he didn’t embrace the plaintiffs’ argument that the Act isn’t “jurisdictional,” because he doesn’t want to leave the door open for courts to start crafting more and more exceptions to the Act; that would mean more and more lawsuits aimed at blocking new taxes. He solved that problem by focusing on the argument that the penalty simply isn’t a “tax.” He argued that the Court can just decide the issue on the ground, without wading into the jurisdiction piece of it. That part came off fine. His bigger problem was his attempt to argue that the penalty is a “tax” for some purposes and not others. That drew some very skeptical responses, and I said in my earlier post.

  2. No specific question just a comment to thank you for keeping us informed. The entire process is fascinating and your first hand account and translation of the legaleze is beneficial and appreciated.

    • domperella says:

      Thanks, Craig! I appreciate the feedback. It’s an exciting week for Court-watchers; it’s my pleasure to attend and report back on what I hear.

  3. Lindsay says:

    If the only penalty associated with not purchasing insurance is a monetary one paid to the IRS, what reasoning supports the potential conclusion that the penalty is not a tax?

    • domperella says:

      Thanks Lindsay. The parties that say the penalty isn’t a tax rely on a few different data points. They point out that Congress chose not to denominate it a “tax.” They point out that Congress placed key parts of the penalty in places in the U.S. Code that don’t usually house “taxes.” And they point out that the Code says the penalty should be assessed and collected “in the same manner” as taxes, which suggests that it isn’t a tax. There are more arguments too, but they start to get fairly arcane….

  4. hsd1 says:

    If all of the parties wanted to move on the the merits and the court had to appoint someone to argue for it, why was the anti-injunction act even an issue?

    • domperella says:

      The Anti-Injunction Act had been a part of the case below. The Administration did try to invoke it at one point in the lower courts, though it later changed its mind. And several judges on the appeals courts ruled that the Act applied and that it required them to kick the lawsuit out of court.

      At the Supreme Court level, if the Act is indeed “jurisdictional,” then the Court has to consider it, even if no party raises it. That’s because jurisdictional rules limit the Court’s power; they amount to Congress telling the Court, “you can’t be involved in this.” So the Court has no choice but to decide whether those sorts of rules apply before it can move on to consider the merits of the case.

  5. Elizabeth says:

    Would a ruling on the Anti-Injunction Act have many implications beyond this case? Would it effect any substantial change in the law regarding what counts as a “tax” or what kind of laws qualify as jurisdictional? Is there any risk the Supreme Court will alter Anti-Injunction Act jurisprudence in an unanticipated way?

    • domperella says:

      Thanks Elizabeth; good questions. The answers depend a lot on what the Supreme Court does. If the Court decides that the Act isn’t jurisdictional, that means the government can “waive” it in future cases. It also means courts will have more power to craft exceptions to the Act. That’s exactly why the Administration argued that the Act is jurisdictional. But the Court didn’t seem overly concerned with those potential problems. Several Justices suggested that government lawyers won’t often waive the Act, even, if they’re authorized to do so. That would mean that, in most cases, litigants still won’t be able to sue to block taxes in advance.

      As for whether the ruling could change what counts as a “tax”: My instinct is that if the Court decides the ACA penalty isn’t a tax, it will try to make its ruling very narrow, so that it only applies on these particular facts. Whether that would work is another question; hard to say based on today’s arguments.

  6. Jenn says:

    What can we expect from the justices over the next two days based on today’s arguments?

    • domperella says:

      The short answer is, it’s hard to say. I’ve seen a few media pieces suggesting that the Justices’ reactions to some of the arguments today — for example, their reactions to the states’ argument that they were injured by the individual mandate — sent signals about the positions they’ll take tomorrow. I tend to disagree. The issues they heard today were very different from what’s still to come. All I take away from today’s argument is that the Justices seem to want to reach the merits, and decide the ACA’s constitutionality — but that doesn’t shed any light on what positions they’ll take once they get there.

  7. Marie says:

    What happens if law is struck down? Is it back to Congress? The lower courts? Who gets to decide what happens next?

    • domperella says:

      Marie — that depends somewhat on how much of the law is struck down, if any. If the Court invalidated the individual mandate and left the rest of the ACA intact, there wouldn’t be much left for the lower courts to do, and the next move would belong to Congress. Ditto if the Court invalidated the entire ACA. But the Court also could choose a third course: It could decide that the individual mandate is unconstitutional and send the case back to the lower courts to decide what other provisions of the ACA can stay in place absent the mandate. In that scenario, the lower courts would have a major continuing role.

      Of course, that’s assuming any of the law is invalidated. We think there’s a good chance the Court will uphold the whole ACA, for reasons we explained at some length in our amicus briefs.

  8. Jason says:

    As a hypothetical, if the court were to surprisingly decide that they lacked the authority to rule until 2014, would the decision only discuss this jurisdictional aspect of the case? Or would it be broader, perhaps giving indication on the merits on the arguments we expect over the next two days, without explicitly ruling on the mandate, etc?

    • domperella says:

      Jason — the most likely course is that the Court would limit itself to the Anti-Injunction Act, with very little or no discussion of other issues. That’s how courts are supposed to operate; they’re not supposed to go further than necessary to decide the case. And while they don’t always follow that principle, here I suspect they would for two reasons. First, this is a jurisdictional issue, and if the Court has no jurisdiction, it has no power, and it has no business saying anything about the other issues. Second, the Court is probably divided on the other issues, and there would be no need to resolve those differences if the case is going away.

      That said, if the Court ruled that the ACA penalty is a “tax,” that certainly could have implications for the Administration’s defense of the law in future cases. It would make it easier for the Administration to argue that the individual mandate, and the penalty, are supported by Congress’ Tax Power.

  9. domperella says:

    Thanks to everyone who participated. Please join us tomorrow as we cover the big day of the ACA proceedings — two hours of arguments on the constitutionality of the individual mandate.