Photo by Andrew Harrer/Bloomberg via Getty Images
It’s all come down to this day. All the passion, politics and propaganda. Starting today, the frenzied national debate that’s divided the nation since the passage of the health care reform law — the Patient Protection and Affordable Care Act — will culminate in three days of oral arguments before the Supreme Court.
Some are calling it the trial of the century.
Whether that turns out to be true or not, the eventual ruling, expected early this summer, will undoubtedly shape the U.S. health care landscape for decades to come. It may also define the legacies of President Barack Obama and Chief Justice John Roberts.
Between Monday and Wednesday, the justices will consider several issues, including whether it’s constitutional for the federal government to force Americans either to buy health insurance or pay a fine.
Each of those mornings, Marcia Coyle — the NewsHour’s Supreme Court analyst and a reporter with the National Law Journal — will offer a preview of the day’s proceedings on The Rundown blog. Each evening, she’ll return from the Court to share her complete analysis on the NewsHour broadcast.
Without further ado, here’s her take on day 1:
What can we expect on the first day of arguments in this historic case?
Coyle: The morning will be exciting in the courtroom and also outside of the justices’ beautiful building — across the street from the Capitol itself. A number of organizations — supporters and opponents of the law — have planned events and speakers before, during and after the arguments near the Court’s building. And I expect there will be a long line of spectators out on the plaza and steps each day hoping to get into the courtroom, if only for a few minutes. Many groups, politicians and others have been waiting for this day. I also expect a packed courtroom. There will be an overflow press section and every seat in the sections for the public and members of the Supreme Court bar will be filled.
How will the arguments unfold?
Coyle: The justices have agreed to answer four key questions about the new law and have divided arguments on those questions over the three days. This morning’s argument is not the “main event” that many people have been awaiting — arguments on the constitutionality of the so-called individual mandate — the law’s requirement that eligible persons have minimum health insurance coverage by 2014 (that will come Tuesday). Instead, the justices will hear three lawyers argue on whether the Court should even be deciding the legal questions before it at this time.
An 1867 law, known as the Anti-Injunction Act, bars federal courts from hearing challenges to federal taxes before they have been enforced. The law’s purpose is quite simple: it ensures that the government can assess and collect the revenue it needs to operate as quickly as possible without the interference of the courts. Taxpayers who think a tax is unconstitutional or invalid will still get their day in court, but it will come after they have paid the tax. They can then go to court and seek a refund.
The act’s interplay with the new health care law comes because of the penalty assessed on taxpayers who do not have minimum insurance coverage. The individual mandate takes effect in 2014. The Internal Revenue Service will assess the penalties, but they will not show up on a taxpayer’s federal tax return until 2015. If the Anti-Injunction Act applies to the health care law, our federal courts, including the Supreme Court, could not entertain challenges to the law before 2015.
How serious is this particular legal issue?
Coyle: The Supreme Court always takes very seriously questions concerning whether it has jurisdiction to review a particular case. In the health care challenge, one federal appellate court — the U.S. Court of Appeals for the 4th Circuit — ruled that the Anti-Injunction Act did prohibit the court from reviewing one of the lawsuits filed against the law. Judges in other circuits have disagreed. That conflict is why the Supreme Court will examine the question.
Will the Court decide Monday whether it should hear the case? If not, why are the justices choosing to hear Tuesday and Wednesday’s arguments before it makes that crucial decision?
Coyle: The Court is unlikely to decide that quickly whether the Anti-Injunction Act applies. Remember, the justices will have to discuss in a private conference after the arguments what they will do and then write a decision, possibly with dissenting and concurring opinions, explaining whatever they decide on that question. In past cases when they saw a potential problem that might prevent them from reaching the merits of a case, they went forward with hearing the merits in the event their later discussion enabled them to overcome the problem. I don’t expect a quick decision on the Anti-Injunction Act.
Who will be arguing on Monday and what will they say?
Coyle: There will be three lawyers at the podium. Solicitor General Donald Verrilli Jr. will be representing the United States. He contends that the Anti-Injunction Act does not apply because the penalty imposed by the health care law does not operate as a tax. Gregory Katsas, a partner in the law firm of Jones Day, will argue on behalf of 26 state attorneys general, the National Federation of Independent Business and four private individuals. He also argues that the act does not apply. He says that the challenge is to the individual mandate, which operates independently of the penalty. And the justices have appointed Robert Long of the law firm of Covington & Burling to make the argument that the Anti-Injunction Act does bar the challenge because the penalty for not buying insurance is a tax in every relevant way. With the appointment of Mr. Long, the Court will have a full picture of the arguments for and against application of the Anti-Injunction Act.
How long will the arguments be this morning and can the public tune in in any way?
Coyle: The Court will hear arguments for 90 minutes — 30 minutes longer than the usual argument before the justices. The United States will have 30 minutes, Mr. Katsas, 20 minutes, and Mr. Long, 40 minutes. The Court will make audiotape recordings of the arguments available on its website by 2 p.m. Transcripts of the arguments also will be found on the website. At the website, click on “Oral Arguments” on the left-hand side of the home page and then follow the links to the audio or transcripts. There will be no live television coverage.
And, of course, everyone can tune into the NewsHour tonight for our discussion of “opening day” of the battle over the health care law.
For more analysis from Marcia Coyle on this week’s health care reform hearings, browse The National Law Journal’s Health Care at the Supreme Court page. And be sure to watch the NewsHour’s primer on the proceedings here:
Our Health Page is full of additional information on the health reform law — including a timeline, a report card, a cheat sheet, and a public polling update. If you have more questions about the law or the Supreme Court case, ask them here and on Twitter using the hashtag #HCRchat. We’ll answer them in an online chat at 1 p.m. ET Tuesday.