By Philip Klein, Senior Editorial Writer, The Washington Examiner
There seemed to be little appetite from justices of the U.S. Supreme Court for delaying a ruling on the underlying constitutionality of President Obama’s national health care law in this morning’s oral arguments, though they differed on their reasoning.
In 90 minutes of oral arguments justices considered whether an 1876 law called the Anti-Injunction Act bars the Court from ruling on the suit at this time. Under the Anti-Injunction Act, people cannot challenge a tax in court until after they have paid it. If the act were found to apply, it would effectively punt the issue until at least 2015.
Both the Obama administration and the 26 states challenging the law along with the National Federation of Independent Business agree that the Anti-Injunction Act does not apply in this case, for different reasons.
Because the Fourth Circuit of Appeals concluded that it did apply, the court appointed attorney Robert Long to argue this position. He essentially made a two-pronged argument — that the law and modern precedent is clear that Court cannot do anything to interfere with tax collection and that the mandate functions as a tax.
“The Anti-Injunction Act imposes a pay first, litigate later rule that is central to federal tax assessment and collection,” Long argued.
He later explained that under the act, not only does the taxpayer have to wait until he pays the tax, but he has to try all the means possible to resolve it by pushing for a refund and waiting six months. If the Anti-Injuction Act doesn’t apply in this case, he said it would allow taxpayers to rush to court and the “taxpayer will be able to go to court at any time without exhausting administrative remedies…”
Justice Antonin Scalia pushed back against Long: “(W)hat’s going to happen is you are going to have an intelligent federal court deciding whether you are going to make an exception,”. To laughter, he added: “And there will be no parade of horribles because all federal courts are intelligent.”
Justices also pointed out a number of cases in which the Anti-Injunction Act was waived.
Justice Stephen Breyer said he was sympathetic to part of Long’s argument, but skeptical about the rest.
“I’m probably leaning in your favor on jurisdiction,” Breyer said. “But where I see the problem is in the second part, because the second part says ‘restraining the assessment or collection of any tax.’” 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.’”
As I noted earlier, one of the main arguments the Obama administration is using in defense of the constitutionality of the mandate is that it is a valid exercise of Congress’s taxing power.
Delaying the ruling would also have practical effects, because states are eager to find out whether the law is constitutional before they decide whether or not to begin dedicating resources to implementing it.
Tomorrow, the court will hear two hours of oral arguments on the core question of whether the mandate is constitutional.