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Supreme court hears Affordable Care Act arguments

This article first appeared in the St. Louis Beacon, March 26, 2012 - President Barack Obama's lawyer began his historic Supreme Court argument Monday with a flourish, saying the constitutionality of the Affordable Care Act is an issue of "great moment."

Hear the arguments or read a transcript

But within a few seconds, U.S. Solicitor General Donald Verrilli was bogged down in a tedious argument about whether the court could even consider such a momentous question. There was no discussion at all of why the health-care law is so important.

The issue of the first of three days of oral arguments in the health-care case was whether the U.S. Supreme Court has jurisdiction to hear the case in light of the Anti-Injunction Act, a post-Civil War law requiring that taxpayers first pay a tax before challenging it. The penalty for failing to buy insurance will not be due until 2015, so the law could delay the court's consideration of the law.

Verrilli also was quickly faced by the difficulty of his argument. Justice Samuel Alito pointed out that Verrilli was claiming Monday that the penalty for failing to buy health insurance was not a tax but would be claiming Tuesday that it was a tax.

By claiming Monday that the penalty was not a tax, Verrilli was trying to open the way for the court to address the substantive issues in the case, such as the constitutionality of the individual mandate. Most of the justices seemed as eager as Verrilli to get past the procedural hurdle, even if they didn't seem to agree on how to surmount it.

But on Tuesday, when the court gets to the main event, the constitutionality of the individual mandate, Verrilli will argue that the penalty is a tax. The reason for the change: The health-care law is almost certainly constitutional if it is seen as an exercise of Congress' muscular taxing power.

Verilli conceded to Alito that Monday's penalty would be Tuesday's tax. But he said that the court's standard for determining if a penalty is a tax is different when the court is considering the application of the Anti-Injunction Act than when it is considering the constitutionality of the law.

Obama and supporters of the health-care law took pains during the debate about the law to say that the penalty for failing to buy insurance was not a tax. Calling it a tax would have hurt the law's chances of passage.

When it comes to the law's constitutionality, the tax argument is a backup plan for the Obama administration.

The administration's leading argument in favor of constitutionality is that the law is a proper exercise of Congress' power to regulate interstate commerce in that health care is one-sixth of the U.S. economy. Opponents of the law counter that Congress never has used its commerce power to force people to buy a product.

Robert Long, who was appointed by the Supreme Court to argue that the Anti-Injunction Act barred consideration of the suit, insisted that the law was meant to bar judicial consideration of the penalty because it was indistinguishable from a tax. But none of the justices appeared to agree.

William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute. Previously, he worked for the St. Louis Post-Dispatch for 34 years, serving as assistant Washington Bureau Chief and deputy editorial editor. He covered the U.S. Supreme Court while in Washington. He is a graduate of Kirkwood High School, Stanford University and Washington University Law School. He is a member of the Missouri Bar.

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