March 26, 2012

The Supreme Court Justices "seemed to be all on the same page looking for a way to go ahead and decide the case even though they had different views on what theory to use."

A first report from today's oral argument about the applicability of the Anti-Injunction Act to the Obamacare litigation. Kevin Russell says that there was "skeptical questioning from at least 5 Justices." They all seemed to want to get over the purported threshold barrier and on to the substantive merits of the case, though they seemed to  who were offering different theories about why they should go forward with the case.

According to Russell, Justices Breyer and Sotomayor focused on the idea that the penalty for failure to buy insurance is not a tax. Justice Scalia gravitated toward a rule of statutory construction: jurisdictional limits are usually construed narrowly. Justice Alito looked at the government's failure to raise the Anti-Injunction Act bar, which could constitute a waiver of the bar that would be effective as long as the Act isn't considered a jurisdictional limitation (that is, a limit on the judicial power that the courts must observe whether the parties want them to or not).

The Chief Justice asked the Solicitor General (representing the U.S. government) to waive the Anti-Injunction Act (which would be effective only if the bar is not jurisdictional), but he refused. The Chief pressed him: Why would it not be in the interest of the United States to waive the Act? From Russell's report, it sound like the SG's answer stress the importance in other cases of having the act work as a jurisdictional bar. (That is, it helps the U.S. collect taxes if it lacks the power to waive the limitation, because in those other cases, the government's lawyers may fail to raise the bar in time to avoid waiver and then later want to invoke it.)

UPDATE: You can listen to the oral argument and read the transcript here.

UPDATE 2: On page 35 of the transcript, I detect eagerness in Justice Ginsburg to say that the Act does not apply in order to avoid the question whether the act is jurisdictional. When the SG agrees with her that the question could indeed be avoided, Justice Kennedy says "Don't you want to know the answer?" and gets a laugh. Kennedy then bears down: You just said "it would be very troubling to say that it's not jurisdictional," but why don't you think the opposite: That it would be good to know that the Act is waivable? The answer is that the government wants to be able to use the act as a bar in cases where the government's lawyers may have inadvertently waived it. (This point is in the original post, and I think Russell or the transcript misidentifies the Justice asking the questions. Was it Roberts or Kennedy?)


Robert Cook said...

Dave Lindorff at Counterpunch offers this leftist perspective today on why Obamacare should be killed:

cubanbob said...

The democrats didn' t legislated as a tax and the penalty as currently written isn't enforcable so what is there to enjoin?

EDH said...

If the Anti-Injunction Act were found to apply and jurisdictional:

1.) would any court challenge to the law then have to wait until after the "tax" was actually imposed in 2014, and

2.) upon that later challenge, would the prior decision that the Anti-Injunction Act applied be in any way be issue preclusive on the issue of whether the law imposes a "penalty" or a "tax"?

Bender said...

Ginsburg (of all people) makes an excellent point about the mandate -- “This cannot be a revenue raising measure, because if it’s successful, there won’t be any revenue raised.”

Bender said...

The EPA case from the other day -- where the EPA demanded that the landowners pay an astronomical sum in administrative penalties before they could seek judicial review -- would seem to have some application on whether we have to wait for people to pay the mandate penalty before filing suit.

Bender said...

Scalia -- "he's assessing and collecting it in the same manner as a tax" p.4

Is there a difference between (a) assessing and collecting the penalty in the same manner as a tax, and (b) assessing and collecting it as a tax?


Bender said...

Only on page 12, but it looks like no one (including Kagen and Sotomayor) is buying the argument that the Act is jurisdictional (given case law that the Act has been waived and subject to equitable exceptions).

Sotomayor: "From all the questions here, I count at least four cases in the Court's history where the Court has accepted a waiver by the Solicitor General and reached a tax issue. I have at least three cases, one of them just mentioned by Justice Kagan, where exceptions to that rule were read in." p.13

Bender said...

Oh, that's gotta hurt, when the guy who is ultimately on your side slams your argument --

Long: "my main objection to the Solicitor General's reading is I don't think it makes a whole lot of sense." p.29

Not a very good argument overall by Long, but about as good as could be made I suppose with the cards he was dealt in being appointed by the Court to argue a loser of a case.

Scott M said...

Good ongoing commentary, Bender. There's not enough popcorn in the world to make me want to watch/read it in progress.

Bender said...

JUSTICE ALITO: Sub-section A says directly, "an applicable individual shall ensure that the individual has the minimum essential coverage." And you are saying it doesn't really mean that, that if you're not subject to the penalty, you're not under the obligation to maintain the minimum essential coverage?

GENERAL VERRILLI: That's correct.
pp. 47-48

Is this a fatal concession?

If the mandate applies only to those subject to the penalty, but the penalty applies only at then end of the tax year, at filing time, then there can be no "obligation to maintain the minimum essential coverage" at the beginning of that tax year.

traditionalguy said...

King OBama may soon regret excoriating the Court in public for passing Citizens United against his threats.

The Stand Your Ground Law may also apply in SCOTUS fights.

Bender said...

Justice Breyer get annoyed (and it doesn't look good for calling the penalty a "tax") --

GENERAL VERRILLI: If they pay the tax, then they are in compliance with the law.
JUSTICE BREYER: Why do you keep saying tax?
GENERAL VERRILLI: If they pay the tax penalty, they're in compliance with the law.
GENERAL VERRILLI: Thank you, Justice Breyer.
JUSTICE BREYER: The penalty.
GENERAL VERRILLI: Right. That's right.

Meanwhile, so much for the argument of "we need the individual mandate to get rid of free-riders who are costing us lots of money by going to the emergency room" --

JUSTICE ALITO: Suppose a person who has been receiving medical care in an emergency room -- has no health insurance but, over the years, goes to the emergency room when the person wants medical care -- goes to the emergency room, and the hospital says, well, fine, you are eligible for Medicaid, enroll in Medicaid. And the person says, no, I don't want that. I want to continue to get -- just get care here from the emergency room. Will the hospital be able to point to the mandate and say, well, you're obligated to enroll?
GENERAL VERRILLI: No, I don't think so, Justice Alito, for the same reason I just gave. I think that the -- that the answer in that situation is that that person, assuming that person -- well, if that person is eligible for Medicaid, they may well not be in a situation where they are going to face any tax penalty and therefore --
JUSTICE ALITO: No, they are not facing the tax penalty.
JUSTICE ALITO: So the hospital will have to continue to give them care and pay for it themselves, and not require them to be enrolled in Medicaid.