The first day of Supreme Court oral arguments in the Obamacare litigation—Florida v. Health and Human Services—indicates that the Court will most likely decide the case on its merits. In other words, the next two days will probably mean something and the court will rule on the constitutionality of Obamacare’s individual mandate and Medicaid expansion.
Today’s arguments—about 90 minutes total—focused on whether the Anti-Injunction Act (AIA) bars the court’s jurisdiction at this point. Basically, this would mean that the 26 states in this suit (Wyoming is one) and the individuals and businesses on board would have to wait until after the individual mandate is implemented and the “tax” is paid in lieu of purchasing insurance before they could sue the government.
This turns largely on whether or not the penalty we’ll all pay if we don’t purchase qualifying insurance is actually a tax or not. So far, this has not fared well in the Obamcare litigation. Only one court, the Fourth Circuit, found that the AIA applied, as did one judge dissenting in the D.C. Circuit’s ruling. Strangely enough, at this point both the plaintiffs and the federal government believe and argue that, for purposes of the AIA, this penalty is not a tax. But it was an issue in this litigation, and the Court appointed an attorney to argue in the AIA’s favor and will address it.
It seems pretty much universal in the legal blogosphere that most of the Justices are skeptical of the AIA barring the case, but for various reasons. I have very little to add to this, but believe after listening to the audio of the arguments that the AIA will not bar the case.
If legal red tape like the AIA sounds familiar to our readers, it should: last week in Sackett v. EPA the Supreme Court overruled a provision of the Clean Water Act that required a lot of waiting and bureaucratic dealing before one could sue the EPA. Similarly, your WyLiberty attorneys have diligently shined the light on cumbersome barriers to resolving constitutional issues in court, and we made it a focal point in a friend-of-the-court brief last year. Judicial efficiency is important, and there must be standing and jurisdictional doctrines to keep out plaintiffs from filing lawsuits that have no actual effect on them, but they should not be so ridiculously cumbersome and protective of constitutionally questionable laws and regulations.
We can approach the next two days of argument with reasonable certainty that they will be part of the Court’s ruling. They will certainly be far more interesting, and hopefully the tone of the Court leaves us as optimistic as after today’s arguments.