U.S. Supreme Court

Day One of Health Arguments Is 'Boring Jurisdictional Stuff'; Which Justices Are in Play?

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The U.S. Supreme Court begins three days of arguments today on the Obama administration’s health care law by considering whether the case was brought too soon.

The law requires Americans to have health insurance by 2014 or to pay a penalty on April 2015 tax returns. The question for the justices today is whether the penalty is a tax and, if so, whether an 1867 federal law called the Anti-Injunction Act bars courts from hearing a challenge until the tax is paid. The New York Times, the Washington Post and ABAJournal.com report on the issue.

Former Solicitor General Paul Clement, who represents states challenging the law, said in remarks earlier this month that he feels sorry for people who camp out to see today’s arguments, Bloomberg News reported at the time. “I think of that as a kind of practical joke that the court is playing on the public,” Clement said. “Some people are going to stand out all [Sunday] night trying to get a seat for the health care argument, and they’re going to hear all this discussion about this Anti-Injunction Act—about the most boring jurisdictional stuff one can imagine.”

Both the Obama administration and lawyers for challengers—26 states and private parties—agree that the law does not bar review at this time. An appointed lawyer, Robert Long of Covington & Burling, is taking the other side, the stories say.

The court will begin considering constitutional issues on Tuesday. Which justices will Solicitor General Donald Verrilli Jr. be targeting? According to the Washington Post, Justice Clarence Thomas is viewed as a vote to overturn the law, while Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan are seen as solidly on the side of constitutionality.

University of California at Irvine law dean Erwin Chemerinsky says the other justices are perceived “as being in play,” the Post says.

Former acting Solicitor General Walter Dellinger, who supports the law, predicts the justices will uphold the measure in a lopsided vote with a narrow majority opinion by Chief Justice John G. Roberts Jr. Ilya Shapiro of the libertarian Cato Institute thinks the vote will go the other way in a 5-4 ruling.

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