Today we witnessed the first salvos in the landmark Obamacare litigation. The issue is whether the Anti-Injunction Act operates to bar consideration of the individual mandate issue until 2015, after the penalties for not purchasing health care have been assessed.
No matter how the Court rules on today’s question, it is not a get-out-of-jail-free card, because the Court would still need to decide the thorny issue of whether the Medicaid expansion is coercive on the states.
The Court began today by handing down an interesting decision in Zivotofsky v. Clinton, which addresses the issue of whether the “political question” doctrine bars consideration of who determines how Jerusalem is listed on a U.S. passport: Congress or the Secretary of State.
This decision has implications for the health care arguments. The Chief Justice, who authored the opinion, emphasized that the Court must not shy away from deciding questions validly before it, no matter how much it may want to avoid thorny issues. That telegraphs their willingness to move on to the merits of this case.
The justices also didn’t seem impressed by the administration’s contortionist act, attempting to brand the individual mandate’s penalty as not a tax today, but a tax tomorrow. Justice Breyer even caught Solicitor General Verrilli in a slip of tongue, calling it a tax, triggering laughter.
Tune in tomorrow for the main event: the individual mandate.