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Supreme Court Justices Ask: Can We Rule On The Health Law?

Evening Edition

Gregory Knoll, executive director of Consumer Credit for Health Education and Advocacy, and Kamal Muilenburg of San Diegans for Health Care Coverage talk to "Evening Edition" about the health care reform law.

Aired 3/26/12 on KPBS Midday Edition.


Gregory Knoll, Executive Director, Consumer Credit for Health Education and Advocacy

Kamal Muilenburg, San Diegans for Health Care Coverage


KPBS Special

Tune in to KPBS at 7p.m., Monday, Tuesday and Wednesday for a one-hour special on this issue.

A protester stands outside the U.S. Supreme Court Building on March 26, 2012 ...
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Above: A protester stands outside the U.S. Supreme Court Building on March 26, 2012 in Washington, DC.

Does a federal law stretching back to 1867 bar the Supreme Court from deciding on the merits of the administration's health law right now?

The court on Monday heard the first arguments in a historic three-day session that could decide the fate of the Obama administration's signature domestic achievement.

The administration and the challengers to the overhaul law don't agree on much. But both sides agreed that the Anti-Injunction Act, which says people can't challenge a tax in court before they pay it, should not prevent the Supreme Court from deciding the constitutionality of the law.

Today's arguments may well be the wonkiest of the week.

After arguments ended shortly before noon, NPR's Nina Totenberg gave a brief recap outside the court. "It was packed, and everybody was very excited to be there," she told Ari Shapiro. She said the arguments were dense and difficult to penetrate.

The justices asked an outside lawyer, Robert Long, to make the case for why the mandate is a tax. His brief is here. Long was the first lawyer to present an argument.

In the early going, the justices peppered Long with questions. But Totenberg said Solicitor General Donald B. Verrilli Jr. "seemed pretty successful at batting back the balls" on the question of whether the mandate was a tax.

Still, Totenberg said a brief filed by two former IRS commissioners that said the mandate should be considered a tax did make an impression on at least two justices. The brief, Totenberg said, warned that the federal government could expect a flood of lawsuits on other tax matters if the mandate is not found to be a tax.

Verrilli said the government disagreed and considered the insurance mandate to be a very special case, Totenberg said.

Overall, Totenberg said, the questioning suggested that the justices were "groping to get to the merits of this case and get over this [Anti-Injunction Act] hurdle." As Justice Stephen Breyer noted, Congress specifically labeled the insurance mandate as a "penalty," not a tax — and one reason was so that the law could be challenged in court.

Over at The Wall Street Journal's live blog of the proceedings (written by reporters shuttling in and out of the courtroom), Brent Kendall reported a similar impression: "Few of the justices' questions appear sympathetic to Mr. Long's argument that the high court doesn't have jurisdiction to consider the insurance mandate now."

After the individual mandate kicks in come 2014, people who can't show they have insurance coverage will have to pay the penalty as a levy on their individual tax returns. Those returns won't get filed until 2015.

Since nobody has faced the mandate yet, much less paid a penalty for not complying with it, there has been no harm.

And if the mandate is really a tax, as one line of argument goes, then the court has no business making a decision about the health law until 2015.

Previously, in a dissenting opinion concerning an earlier challenge of the health law, Judge Brett Kavanaugh, of the U.S. Court of Appeals for the District of Columbia, wrote:

"The Tax Code is never a walk in the park. But the statutory analysis here leads to a firm conclusion that the Anti-Injunction Act bars this suit."

And the same logic could apply to the current argument.

Early on, the Obama administration invoked the idea that the Anti-Injunction Act would shield the health law from challenges that claimed the mandate was a tax. But the administration dropped that defense when it didn't get much traction.

Outside the court this morning, demonstrators for and against the health law tried to outdo each other. NPR's Ari Shapiro reported that they could use some new material.

They'll have two more days to work on their chants.

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Avatar for user 'Peking_Duck_SD'

Peking_Duck_SD | March 26, 2012 at 12:25 p.m. ― 4 years, 11 months ago

There is no way this law should be struck down, and if it is I will be more disgusted and disgruntled with the U.S. Government and judiciary than I have ever been in my lifetime.

EVERYONE is a part of our healthcare system.

That point cannot be argue.

At some point in our lives, we will all be involved directly in the healthcare marketplace.

Those who choose not to purchase insurance cost the rest of us money because if they suddenly have an accident or fall ill, tax payers are left paying the tab.

The constitution gives the federal government the power to regulate commerce, and those arguing to strike this bill down claim those who are not sick are not involved in the health care marketplace cannot be regulated.

Again, this is nonsense because everyone needs healthcare at some point.

The very nature of having a human body makes each one of us part of the health care marketplace, as humans with flesh and blood bodies one cannot "exempt" themselves from the health care market.

The federal government has every right under the constitution to regulate something every member of our society is part of, and one in which those who don't purchase insurance have a negative impact on society as a whole through unpaid health care bills that tax payers have to pick up.

I think Americans need to wake up and realize we are part of a society and certain basic fundamentals of life do need some central control in order to bennefit the whole of society.

A huge disconnect is sen in the polls.

Americns seem troubled by he mandate, however other provisions such as no penalties for pre-existing conditions rate very high.

**The disconnect is that the positives of the bill cannot exist without the mandate.**

The only way an insurance cornpany can afford to not penalize for pre-existing conditions is if everyone, including those who are healthy, is buying insurance.

Without a mandate, many people who are healthy will simply not buy insurance and literally take a gamble that thy won't become injured or ill. Without their contributions, insurance companies will need to stick it to those of us who o purchase insurance in order to make up the profits.

This is why I laugh when Republican critics of health care reform claim they are for the popular things like no penalties for pre-existing conditions but they are against the mandate. Perhaps these dopes don't comprehend how insurance actually works (or, more likely, they do but they are banking on the public being too stupid to see through their double-talk).

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Avatar for user 'Peking_Duck_SD'

Peking_Duck_SD | March 26, 2012 at 12:26 p.m. ― 4 years, 11 months ago

Bottom line - I am not a huge fan of this health care reform. I think we would be far better of eliminating insurance companies from the equation and going to a singl-payer system for all. But, at least this health care reform closes some of the gaps and is a step in the right direction. Undoing it now would set us back light years in terms of health care, especially when you look at us compared to other 1st world countries.

We pay more per capita than any other country, our system is rated lower than most other countries by the users, and we are the only 1st world country on the planet that has tens of millions of people without access to basic health care and has an epidemic of bankruptcies due to unpaid health bills.

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