Supreme Court gets to crux of health reform

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One of the most highly anticipated U.S. Supreme Court cases in recent memory kicked off yesterday. Inside the Court, testimony was often technical and even dense, while, outside the court, the atmosphere was lively with a gathering of protesters, reporters, pundits, politicians and curious spectators. In fact, the fun started on Friday, when folks (including professional line-standers) started lining up outside the court, in hopes of grabbing a coveted seat.

Yesterday's arguments before the Supreme Court centered on whether the Court can rule on the Affordable Care Act and its "individual mandate" provision, which requires all Americans to have health insurance by 2014 to avoid paying a penalty when they file their tax forms in 2015.

The question in yesterday's case: Is the penalty for not having health insurance a fee, or is it a tax?

If it's a tax, the justices could bow out under the 1867 Anti-Injunction Act, which says the court can't hear a case about unconstitutional taxes before plaintiffs actually have paid the tax, which won't happen until 2015.

Both sides agree on this one matter: The case should be litigated now. In fact, the court had to appoint an attorney, Robert Long, to argue the opposite because neither side wanted to do so. Among his arguments: There is no criminal penalty for not paying the fee and, if the court grants exceptions, it will lead to a flood of litigation.

But the litigants will argue that the individual mandate requires people to buy a commercial product and is unconstitutional for that reason.

Justice Ruth Bader Ginsburg said the tax issue is "beside the point" and questioned Long about the "must-buy" aspect of the case. "... All this talk about tax penalty--­it's all beside the point because this suit is not challenging the penalty. This is a suit that is challenging the must-buy provision, and the argument is made that, if, indeed, 'must-buy' is constitutional, then these complainants will not resist the penalty," she said.

"So, what they're seeking is a determination that that the 'must-buy' requirement, stated separately from the penalty, that 'must-buy' is unconstitutional. And, if that's so, that's the end of the case; if it's not so, they're not resisting the penalty."

It is notoriously difficult--if not downright foolish--to try to guess what the Supreme Court will do based on their questions during oral arguments. Even if they often start statements with the phrase, "It seems to me," the justices play the role of devil's advocate frequently and well.

But there's a general consensus that they will rule on the ACA cases scheduled for today and tomorrow. On Monday, justices pointed out that they've put aside or made exceptions to the Act in order to rule on other cases.

"I don't usually make predictions but I thought it was pretty clear that the justices are going to rule on the Affordable Care Act. The only question is what the rationale is going to be," Nina Totenberg, who covers the court for NPR, said in an audio interview yesterday on NPR's Shots blog.

"[Justice Clarence] Thomas was the only justice who didn't ask any questions. He hasn't asked any questions in six years so we don't know what he's thinking," Totenberg said. "But other than that [I saw] a bunch of justices groping for a way to get to the merits of this case and get over this hurdle."

For the gamblers out there, FierceHealthFinance Editor Ron Shinkman is offering 7 to 1 odds on whether Thomas will ask a single question during the three days of arguments. Odds that the Court will strike down the individual mandate are five to six, and it's even money that ACA will prevail in its entirety, he said.

The Supreme Court is set to announce its ruling on the ACA cases later this summer.

In today's case, The Department of Health & Human Services v. Florida, et al, attorneys will get to the real heart of the matter: Can the federal government require U.S. citizens to get health insurance or face paying a penalty?

"[Tuesday] is really the 'main event' from the perspective of many organizations, politicians, businesses and individuals who have been involved with or just have followed the debate over the constitutionality of the new health care law, Marcia Coyle of the National Law Journal told PBS News Hour in a guide to day two of the ACA arguments.

To learn more:
- listen to an audio recording of yesterday's oral arguments or read the transcript (.pdf) of yesterday's session
- see the docket that lists all the ACA cases before the court, including case filings
- read the NPR Shots blog article and listen to Nina Totenberg's recap and analysis of Monday's oral arguments
- see the News Hour roundup of day one and guide to day two of the ACA arguments
- hear from would-be spectators who spent their weekend waiting in line for a seat in the courtroom
- check out the Bettor's guide to health reform at the Supreme Court from FierceHealthFinance

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