The U.S. Supreme Court heard 90 minutes of arguments this morning, the first of three days set aside to examine the Affordable Care Act. In this first round, the high court focused on whether the penalty for not having health insurance, is considered a tax.
The Anti-Injunction Act of 1867 says you can’t challenge a tax before it takes effect. Most of the health care law doesn't kick in for another two years. An appeals court ruled the penalty in the Affordable Care Act was indeed a tax.
But the Obama administration dropped that argument, so the high court appointed an outside attorney to make that case, which led to what attorney Gregory Katsas calls “very weird circumstances.” Katsas represents Florida and other states arguing the mandate that all Americans obtain health insurance is unconstitutional. He says every party to the case thinks the Anti-Injunction Act doesn’t apply. And the government, he says, is "the sole beneficiary of this statute. Even they don’t think it applies."
Justice Stephen Breyer asked, why, if Congress called it a penalty in its own law, why was it a tax? The reply, from the attorney drafted by the high court to argue the other side, was that even the Internal Revenue Service doesn’t define tax in its own code.
Outside the high court, the arguments took a different tone. The sidewalks were crowded with protestors. A number of people chanted, “We love the Constitution, protect my health care, protect the law.” A group wearing white lab coats also voiced their support for the Affordable Care Act. Folks on the other side were in attendance, including a group of anti-abortion protestors with red duct tape around their mouths, the word “life” written on it.
Even before the arguments began, a line formed around the corner of court watchers who want a seat for day two. They'll have a cold night on the marble steps of the Supreme Court: Temperatures are expected to drop below freezing overnight.