19th-century law is focus on first day of Supreme Court arguments

Modern Healthcare, By Joe Carlson –
  March 26, 2012: With crowds of demonstrators outside the Supreme Court on   Monday, the nine justices inside grilled three attorneys over whether an 1867   federal law prohibits courts from hearing challenges to the new federal   requirement that nearly all Americans purchase health insurance.
  The justices leveled hard-nosed questions about the substance and intent of   the 19th-century law—known as the Anti-injunction Act, and whether it ought   to deny them jurisdiction to hear challenges to the insurance mandate in the   Patient Protection and Affordable Care Act.
  Monday’s 90-minute session marked the first of three days of arguments about   the law. “This case presents questions of great moment, and the   Anti-injunction Act does not bar the courts from hearing from,” U.S.   Solicitor General Donald Verrilli Jr. said in an opening remark before a room   of observers pressed shoulder-to-shoulder in the courtroom.
  Though the discussion frequently delved into granular discussions of federal   statutes and court precedents, Verrilli urged justices to find, at base, that   Congress did not intend the penalty for failure to buy health insurance in   2014 as a tax, even though the penalty is enforced through the procedures in   the tax collection laws.
  With certain narrow exceptions, the Anti-injunction Act bars any lawsuit in   any court from interfering with the collection of a tax before the amount is   paid or a formal collection action has begun.
  “The AIA imposes a pay-first, litigate-later rule that is central to tax   collection,” said attorney Robert Long, who was appointed by the justices to   argue in favor of the idea that the law should bar them from hearing the case   until penalties are assessed sometime after 2014.
  However, Long faced among the toughest questions from the justices, despite   his appointment. At one point, Justice Sonia Sotomayor, asked what “parade of   horribles” would follow if the court decided it could hear the case now.
  Long replied there was the risk that litigants and federal judges may see   such a decision as an opening to consider granting other waivers to the   Anti-injunction Act in other cases—a prediction also made in an amicus brief   filed by commissioners of the Internal Revenue Service.
  Following Long’s response, Justice Antonin Scalia concluded sarcastically,   “So there will be no parade of horrors because all federal judges are   intelligent.” The remark drew laughter from the crowd.
  Also addressing Long, Justice Stephen Breyer said that neither the text of   the act nor the way that it was codified in the federal statutes appeared to   support a decision to wait until 2014. “Congress here has nowhere used the   word tax,” Breyer said.
  Justice Ruth Bader Ginsburg asked whether the argument missed the point of   the lawsuit, which doesn’t actually challenge the penalty regardless of   whether it’s found to be a tax. “This suit is not challenging the penalty,”   Ginsburg said. “This suit is challenging the must-buy requirement. If the   requirement is upheld, (the citizens suing over the mandate) will not contest   the penalty.”
  In questioning Long, Scalia made clear his feeling about whether the court   should hear the case: “Unless it’s clear, the courts are not deprived of   jurisdiction. Whatever else this is, I find it hard to believe that this is   clear.”


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