WASHINGTON -- On opening day in the health care cases, the Supreme Court justices made clear they would not let common sense get in the way of making constitutional history.
The Affordable Care Act's individual mandate, which has been challenged by 26 states and several private plaintiffs, requires virtually all Americans starting in 2014 to have health insurance or pay a penalty. But standing between the Supreme Court and a politically charged decision upholding or striking down the mandate is a Reconstruction-era law called the Anti-Injunction Act, which forbids lawsuits filed "for the purpose of restraining the assessment or collection of any tax" until that tax has been paid.
The applicability of the Anti-Injunction Act to the mandate seems straightforward enough (although it split the federal appeals courts). The penalty is a tax because it will be paid through one's tax return. And the statute's text says that before the tax is paid, "no suit ... shall be maintained in any court by any person."
Yet neither side in the Supreme Court wanted to make this simple, delaying argument, seeking instead an election-year constitutional clash over a sitting president's signature legislative achievement. So the high court appointed Washington lawyer Robert Long to lay out the case for applying the Anti-Injunction Act.
And on Monday morning, the justices lawyered the Anti-Injunction Act to death.
Their questions focused on how to wiggle out of the law's flat ban on tax-restraining lawsuits and how to avoid the conclusion that the mandate's penalty is, in fact, a tax.
Long told the justices that Congress said the "penalty shall be assessed and collected in the same manner as taxes," but Justice Antonin Scalia suggested that courts owed no deference to that determination because, he said, it was directed solely to the Treasury Department.
Justice Ruth Bader Ginsburg contrasted the Anti-Injunction Act's "no suit ... shall be maintained" language with that of a sister statute that expressly bans "courts of the United States" from delaying certain proceedings. This contrast, she contended, makes the Anti-Injunction Act "suitor-directed in contrast to court-directed." Never mind the rest of the statute, which reads, "in any court by any person."
Justice Samuel Alito, for his part, implied that several past cases set the precedent that the Supreme Court could accept a waiver of the act's applicability by the solicitor general. Justice Anthony Kennedy seemed to agree with this line of reasoning. It did not seem to matter that Long just minutes before had told Chief Justice John Roberts that such a principle "has been overruled by subsequent decisions of this Court."
Long then argued that if Congress had wanted to exempt the mandate's penalty from the Anti-Injunction Act, it could have passed a law saying so. Justice Elena Kagan turned that sensible, and usually accepted, interpretation of congressional silence on its head, suggesting that the ban should not apply unless Congress says it does.
Justices Stephen Breyer and Sonia Sotomayor, meanwhile, took seriously Congress' refusal to call the penalty a tax, however tax-like it was.
"Congress is not denominating it as a tax; it's denominating it as a penalty," Sotomayor said.
The penalty "is not attached to a tax," Breyer said. "It is attached to a health care requirement."
But Sotomayor asked, "What's the parade of horribles" that would occur if the Anti-Injunction Act were something that the government could apply at its discretion?
Long was not able to give a sufficient answer, so Scalia answered for him.
"What's going to happen is you are going to have an intelligent federal court deciding whether you are going to make an exception," Scalia said. "There will be no parade of horribles because all federal courts are intelligent," he added, forgetting for a moment the Supreme Court's repeated reversal of decisions from the U.S. Court of Appeals for the 9th Circuit.
With the high court apparently unanimously arrayed against the lawyer they had appointed to argue before them, Solicitor General Donald Verrilli and the challengers' lawyer, Gregory Katsas, were freed to tell the justices how to get past the Anti-Injunction Act.
Verrilli's main problem was getting past his own hair-splitting attempt to define "tax" to the government's benefit. The penalty is a tax for constitutional purposes, he argued, looking ahead to the intricacies of Tuesday's debate. But, he said, it is not a tax under the Internal Revenue Code, which is what matters for the Anti-Injunction Act analysis.
"General Verrilli, today you are arguing that the penalty is not a tax," Justice Alito said. "Tomorrow you are going to be back and you will be arguing that the penalty is a tax."
"Has the Court ever held that something that is a tax for purposes of the taxing power under the Constitution is not a tax under the Anti-Injunction Act?" Alito asked.
Verilli said no.
Still, if the justices bought his argument, he said, they could avoid the more complicated question of the Anti-Injunction Act's reach well beyond the health care cases.
"Don't you want to know the answer?" Kennedy said, provoking laughs.
"Justice Kennedy, I think we all want to know the answer to a lot of things in this case," Verrilli responded.
To that, Sotomayor referenced the apocalyptic predictions made by the Affordable Care Act's foes should the Supreme Court uphold the mandate's constitutionality.
"The private respondents argue that there are other collateral consequences, such as for people on probation who are disobeying the law. If they don't buy health insurance, they would be disobeying the law and could be subject to having their supervised release revoked," she said.
"That is not a correct reading of the statute, Justice Sotomayor," Verrilli answered. "The only consequence that ensues is the tax penalty."
Katsas, arms folded across his chest, rounded out the morning by arguing that the Anti-Injunction Act did not apply to the case because his clients were challenging the mandate to have insurance, not the penalty for failing to do so.
Chief Justice Roberts rejected the contention. "It seems very artificial to separate the punishment from the crime," he said.
Video produced by Sara Kenigsberg.
Read a transcript of the Supreme Court's first day of oral argument: