The Legal Surrealism of Today's Health Care Arguments

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The justices spent more than an hour deciding whether to make a ruling on the individual mandate. Odds are, they will. 

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Reuters

This is why so few people understand the law, or what really judges do, or why the United States Supreme Court is unlike any other institution in modern American life: With hundreds of millions of Americans eagerly awaiting word on the fate of the Affordable Care Act, and with a presidential election perhaps in the balance, the justices spent 89 minutes Monday morning deciding whether they should now decide anything at all about the "individual mandate" at the core of the federal health care law. That's 5,340 seconds of legal surrealism you just couldn't make up.

There were no shocking moments in court during the first round of arguments. There were no outbursts from the justices or the lawyers or the carefully controlled audience. As he has done consistently now for six years, Justice Clarence Thomas sat in silence on the bench. 

And the rest of the Court? Less than half an hour into the argument, the other eight mouthy justices all had already peppered attorney Robert Long with questions about the meaning of the Anti-Injunction Act, the ancient federal law that purports to require someone to actually be taxed before they can challenge that tax. Here's the link to today's audio and transcripts.

After a long morning of dense, technical argument, the consensus from the room -- and by that I mean the educated guesses of the legal commentariat -- suggests there is little interest among the justices in avoiding a ruling on the merits of the Care Act's "individual mandate." That's good news for practically everyone who cares about the federal health care law and who wants to see a resolution here one way or the other. After two years of tortuous litigation, can you imagine the kerfluffle if the justices announced that we'd all have to start over again with a whole new round of litigation at the trial court level in 2014 or 2015? Yeah, me neither.

The first question of the day was asked by Justice Antonin Scalia. The last question of the day was asked by Justice Stephen Breyer. In between, there were three exchanges that I found to be more interesting than the rest for no other reason than they capture some of the tensions inherent in today's arguments. The exchanges help illustrate why these lawyers make the big bucks, why Supreme Court justices are often the smartest folks in the room, and why legal standards and principles and precedents are so bloody indicipherable to so many people.

First, there was this exchange between Justice Breyer and Robert A. Long, the attorney who was asked by the Court to argue a legal position that neither the Obama Administration nor the states challenging the Care Act wish to see succeed. How would you like that job? Hey, pal. Come before the High Court, make the least popular argument in America, and argue for maybe a five-year delaying in resolving the merits of the most contested federal statute since the civil-rights era. (At least Chief Justice Roberts had the grace to sincerely thank Long when the day's debate was done.)

Breyer: Now, here, Congress has nowhere used the word "tax." What it says is penalty. Moreover, this is not in the Internal Revenue Code "but for purposes of collection." And so why is this a tax? And I know you point to certain sentences that talk about taxes within the code.

Long: Right.

Breyer: -- and this is not attached to a tax. It is attached to a health care requirement.

Long: Right.

Breyer: -- so why does it fall within that word?

Long: Well, I mean, the first point is -- our initial submission is you don't have to determine that this is a tax in order to find that the Anti-Injunction Act applies, because Congress very specifically said that it shall be assessed and collected in the same manner as a tax, even if it's a tax penalty and not a tax. So that's one

Breyer: But that doesn't mean the AIA applies. I mean -- and then they provide some exceptions, but it doesn't mean the AIA applies. It says "in the same manner as." Well, that it's being applied -- or if it's being collected in the same manner as a tax doesn't automatically make it a tax, particularly since the reasons for the AIA are to prevent interference with revenue sources. And here, an advance attack on this does not interfere with the collection of revenues... But I would like to know what you say succinctly in response to those arguments.

Long: So specifically on the argument that it -- it is actually a tax, even setting aside the point that it should be assessed and collected in the same manner as a tax. The Anti-Injunction Act uses the term "tax"; it doesn't define it. Somewhat to my surprise, "tax" is not defined anywhere in the Internal Revenue Code.

Then there was this exchange, a little later in the morning, between Justice Samuel Alito and United States Solicitor General Donald Verrilli Jr. It cuts to the heart of a contradiction the federal government has tried to overcome as it has defended the federal law.

Alito: General Verrilli, today you are arguing that the penalty is not a tax. Tomorrow you are going to be back and you will be arguing that the penalty is a tax. Has the Court ever held that something that is a tax for purposes of the taxing power under the Constitution is not a tax under the Anti-Injunction Act?

Verrilli: No, Justice Alito, but the Court has held in a license tax cases that something can be a constitutional exercise of the taxing power whether or not it is called a tax. And that's because the nature of the inquiry that we will conduct tomorrow is different from the nature of the inquiry that we will conduct today. Tomorrow the question is whether Congress has the authority under the taxing power to enact it and the form of words doesn't have a dispositive effect on that analysis. Today we are construing statutory text where the precise choice of words does have a dispositive effect on the analysis.

And, finally, this toward the very end of Monday's argument.

Breyer: So, what we want to do is get money from these people. Most of them get the money by buying the insurance and that will help pay. But if they don't, they are going to pay this penalty, and that will help, too. And the fact that we put the latter in brings it within the taxing power. And as far as this Act is concerned about the injunction, they called it a penalty and not a tax for a reason. They wanted it to fall outside that, it's in a different chapter, et cetera. Is that what the heart of what you are saying?

Verrilli: That's the essence they called it a penalty. They didn't give any other textural instruction in the Affordable Care Act or in the Internal Revenue Code or that that penalty should be treated as a tax for the Anti-Injunction Act purpose.

Roberts: You agree with Mr. Long, and, in fact, you just agreed with Justice Breyer that one of the purposes of the provision is to raise revenue.

Verrilli: It will -- well, it will raise revenue. It has been predicted by the CBO that it will raise revenue, Your Honor. But even though that's the case, and I think that would be true of any -- of any penalty, that it will raise some revenue, but even though that's the case, there still needs to be textural instruction in the statute that this penalty should be treated as a tax for Anti-Injunction Act purposes, and that's what is lacking here.

Alito: After this takes effect, there may be a lot of people who are assessed the penalty and disagree either with whether they should be assessed the penalty at all, or with the calculation of the amount of their penalty. So under your interpretation of the Act, all of them can now go to court? None of them are barred by the Anti-Injunction Act?

If the justices decide to resolve the merits of the Affordable Care Act -- if they make a substantive ruling on the "individual mandate" -- few people other than law geeks and tax mavens will remember or care about the Anti-Injunction Act or the details of Monday's argument. If it is not a footnote in the Court's looming opinion it will certainly be a footnote in legal history. 

So the happiest man in Washington this afternoon? It's got to be Robert Long. He ably served his country, received the appreciation of the Court, and now can duck out of the way and watch from afar as his colleagues blast away at each other Tuesday over the mandate itself.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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