Tax Law Provision Could Keep Supreme Court From Making Obamacare Decision Till 2015
Perhaps this is one of the reasons Team Obama is arguing that the mandate is a tax
(USA Today) Next month’s challenge to the Obama-sponsored health care law could affect the care available to most Americans, alter the balance of power between Washington and the states and remain a flash point through this presidential campaign.
Yet there is a path the Supreme Court could take when it hears the case that could delay for years any resolution of a main point of contention.
The core of the law is a requirement that most people buy health insurance by 2014 or face a tax penalty. But looming over the case is a federal policy that restricts the timing of lawsuits connected to the assessment and collection of “any tax.”
On the first day of their historic session March 26-28, the justices will consider that policy and address whether people who challenge the insurance requirement must first pay the disputed tax and seek a refund before bringing a lawsuit. If the answer is yes, the legal fight over a key part of the law could be delayed, possibly until 2015.
SCOTUS announced Tuesday that they would allow an extra 30 minutes to debate this issue, based on the Anti-Injunction Act. Any SCOTUS ruling could very well be based on how the complainants argue, since they will also say that the mandate is, in fact, in violation of the Commerce Clause, and they may well argue that the AIA is itself a constitutional violation.
But, think about this: with the mandate, Americans would be assessed a “tax” for simply being an American who did not purchase something, in this case, health insurance. With the AIA, Team Obama would be arguing that Obamacare can’t be challenged because the tax has not been assessed. They basically want it both ways.
The plaintiffs can also argue that Team Obama have argued that the mandate is both a tax and a penalty (using the Commerce Clause, despite there being no power to do this based on that pesky old Constitution). And the lawyers for the plaintiffs are on top of it
“The individual mandate is a free-standing legal requirement obligating virtually every American to obtain health insurance,” lawyer Michael Carvin, representing the NFIB, told the court. He says Long wrongly argues that the “penalty” for not buying insurance can be characterized as a “tax.”
Paul Clement, representing the state challengers, similarly argues that the court should address the constitutional merits of the mandate. The Anti-Injunction Act does not apply “for the most basic reason of all,” he told the court. “The challenge here is to the mandate, and not the penalty that enforces it.”
The AIA stance has only won in one court so far, so, we’ll have to see how it does at the Supreme Court.