Bench Memos

Justices Open to Reaching Merits of Obamacare Challenge

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. 

All signs point to the Court allowing this case to continue on the merits.

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.

With the exception of Justice Breyer, and possibly Justice Sotomayor, the justices all were skeptical that the AIA is jurisdictional. And if the AIA is not jurisdictional, the government can waive it, as it has here, or the Court can find exceptions to the rule, which would be likely in 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.

Carrie Severino — Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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