On health law, 9 first take up suits’ timing

WASHINGTON — The U.S. Supreme Court opened historic arguments on President Barack Obama’s healthcare overhaul by debating whether it should rule this year at all.

The justices are considering whether an 1867 law bars them from ruling for now on the measure that requires almost every American to get health insurance by 2014 or pay a penalty.

The 1867 law blocks suits over taxes that haven’t been imposed, and Justice Ruth Bader Ginsburg questioned whether health-care penalties would be taxes.

“This is not a revenue-raising measure,” Ginsburg said. “If it’s successful, nobody will pay the penalty and there will be no revenue to raise.”

Under the new law, Americans who don’t purchase health insurance would have to report that omission on their tax returns for 2014 and would pay a penalty along with federal income tax on returns due by April 2015. The law would extend coverage to 32 million people.

If a ruling comes before the November presidential election, it would be the first time the high court ruled on a president’s signature legislative achievement inthe middle of his re-election campaign.

The justices heard arguments for 90 minutes before a packed courtroom of about 500 people, including dozens of spectators in adjacent hallways that offer obstructed views. Those attending included Attorney General Eric Holder, Secretary of Health and Human Services Kathleen Sebelius and Sen. Jeff Sessions, an Alabama Republican on the Senate Judiciary Committee.

The health law is being challenged by 26 states and the National Federation of Independent Business, an advocacy group. The court probably will rule by late June, months before the November presidential election.

The six hours of planned debate is the most on a case in 44 years. The justices today will consider whether the government had power to enact the health-care law under its constitutional authority to regulate interstate commerce.

As Monday’s session began, the line for today’s argument stretched around the street corner. Outside the court, demonstrators shouted dueling slogans, with opponents of the law crying “socialist” and supporters yelling “We love Obamacare!”

The four justices appointed by Democrats aimed skeptical questions at Robert Long, a lawyer the court appointed to argue that the Anti-Injunction Act made the case premature.

Justice Stephen Breyer said he had a “problem” with Long’s argument. The justice said the health-care lawsuits didn’t prevent the Internal Revenue Service from collecting taxes, something he said was the primary goal of the Anti-Injunction Act.

“An advance attack on this does not interfere with the collection of revenues,” he said.

Later, Breyer said Congress “did not use the word ‘tax’” in enacting the healthcare law.

Justice Sonia Sotomayor said that on at least seven occasions the court had found a way around the Anti-Injunction Act. “Isn’t the fairer statement that Congress has accepted that, in the extraordinary case, we will hear the case?” she asked.

Long pointed to a provision in the health-care law that says the penalties “shall be assessed and collected in the same manner” as a tax. He said opponents shouldn’t be allowed to go to court until the first penalties are imposed in 2015.

“The Anti-Injunction Act imposes a pay-first, litigate later rule that is central to federal tax assessment and collection,” Long argued.

“What is the parade of horribles?” asked Sotomayor, if the court were to decide the penalties were not a tax and the health-care case went forward? Long suggested that could encourage more challenges to the long-standing system in which the general rule is that taxpayers must pay a disputed tax before they can go to court.

The Supreme Court appointed Long to make the argument because the Obama administration and the law’s challengers say the Anti-Injunction Act isn’t an obstacle to a Supreme Court ruling on the law.

Long’s contentions drew little traction. No justice suggested the act should apply. The justices’ questions indicated that any differences among them will turn on the legal reasoning rather than the conclusion that they can proceed to consider the substance of the health-care law.

“Most of the justices seem skeptical that the mandate and penalty are a tax,” said Randy Barnett, a lawyer representing the National Federation of Independent Business, in an e-mail statement. “They seem ready, willing and able to reach the merit of the commerce clause claim.”

One issue for the justices is whether the law strips federal courts of any power to hear tax challenges - so that even the federal government couldn’t agree to let a lawsuit go forward. Chief Justice John Roberts said the Supreme Court had “gone back and forth” on that issue.

Ginsburg offered a way around that issue, asking U.S. Solicitor General Donald Verrilli, who argued for the Obama administration, whether the court could avoid deciding the question by simply concluding the Anti-Injunction Act didn’t apply. Verrilli said that is “exactly our position.”

The questions came so quickly at times that the justices interrupted each other. At one point, Justices Ginsburg, Elena Kagan and Sotomayor started speaking at the same time. Roberts signaled Ginsburg to go first. Only Justice Clarence Thomas, as is his custom, stayed out of the fray.

Monday’s session at times slid into a discussion of issues the court will take up today. Justice Samuel Alito suggested the Obama administration’s position on the Anti-Injunction Act was inconsistent with its contention that Congress could enact the law through its constitutional power to impose taxes.

“Today you are arguing that the penalty is not a tax,” Alito said. “Tomorrow, you are going to be back, and you will be arguing that the penalty is a tax.”

On the third day of debate, the court will hear arguments on what would happen to the rest of the law if the insurance requirement is struck down, and whether the law’s expansion of Medicaid unconstitutionally coerces the states into spending more on health care for the poor.

The health-care law, being phased in over several years, imposes new taxes on the highest wage earners, calls for fees on health-care companies and provides hundreds of billions in Medicare savings. Already in effect are provisions closing a gap in prescriptiondrug coverage, allowing 2.5 million young adults to stay on their parents’ insurance until age 26, and providing free mammograms, colonoscopies and flu shots.

Obama and Democrats in Congress enacted the law over Republican opposition that helped fuel the rise of the Tea Party movement. Senate Minority Leader Mitch Mc-Connell, a Kentucky Republican who wants to repeal the law, said Friday that what his party calls “Obamacare” is a metaphor “for all of the excess of this administration.”

One of the four federal appeals courts to have ruled on the health-care law said the Anti-Injunction Act required dismissal of legal challenges.

The 1867 law says “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person.” It stems from President Abraham Lincoln’s 1862 approval of the nation’s first income tax to raise money to pay for the Civil War.

Americans filed lawsuits in federal courts challenging the government’s right to tax them. Congress responded with the law that requires Americans to pay their tax bills before suing the government.

By 2019, about 95 percent of the country will have health insurance if the law is allowed to take full effect, the Congressional Budget Office estimates.

Outside the court Monday, across the street from the U.S. Capitol, remnants of a weekend camp out were strewn on the sidewalk: blankets, food containers and plastic bottles.

By 9:30 a.m., the scene had turned from groggy-eyed line sitters to a carnival atmosphere complete with a New Orleans-style brass band.

The early round of line waiters moved inside the court. A new line formed for today’s arguments. That line stretched around the corner.

Attorneys admitted to practice law before the Supreme Court had their own line, which was shorter and had less camping equipment.

The health-care cases are National Federation of Independent Business v. Sebelius, 11-393; Department of Health and Human Services v. Florida, 11-398; and Florida v. Department of Health and Human Services, 11-400.

Information for this article was contributed by Greg Stohr, Megan Hughes, Jeff Bliss and Drew Armstrong of Bloomberg News and by Mark Sherman, Pete Yost, Jesse Holland and Jessica Gresko of The Associated Press.