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Supreme Court appears eager to rule on healthcare law

As justices begin three days of oral arguments, it becomes clear they aren't inclined to let a tax law delay them in deciding on the controversial insurance mandate.

March 26, 2012|By David G. Savage and Noam N. Levey, Washington Bureau
  • Opponents and supporters of President Obama's healthcare law gather outside the Supreme Court on the first day of arguments in the case.
Opponents and supporters of President Obama's healthcare law gather… (Brendan Smialowski, AFP/Getty…)

WASHINGTON— The battle over President Obama's landmark healthcare law arrived at the Supreme Court as justices began three days of oral arguments, quickly making clear they are ready to rule on the politically charged question of whether the government can require all Americans to have health insurance by 2014.

Outside, where spectators had been lining up since Friday for the few available seats inside the court, protesters, partisans and even a Republican presidential candidate gathered. Former Sen. Rick Santorum of Pennsylvania pledged to seek a repeal of the law if he was elected president. As supporters of the law chanted, "Healthcare is a human right," Santorum demurred. "Rights come from our creator.... Rights should not and cannot be created by a government," he said.

The administration, for its part, has been touting the healthcare law more prominently as the case neared, hoping to make a virtue of the necessity of defending a statute that remains controversial.

Over the weekend, tea party activists protested the law near the court. On Monday, most of those waiting outside were supporters.

Among them was Kathie McClure, a lawyer from Atlanta who has an adult son with Type 1 diabetes and a daughter with epilepsy. She had been planning her court visit for two weeks and arrived to get in line at 2 p.m. Friday. "I decided this is too important to me and my family," she said.

Inside, the justices focused on whether a 19th century tax law might bar them from deciding the case now. The law says no one may sue to challenge a tax until he or she has paid the amount and sought a refund.

Until Monday, some legal experts had thought the court might use that law as an opportunity to postpone a ruling until 2015, when the first taxpayers could face a penalty for not having the required minimum health coverage.

But the prospect of a delay faded quickly. The justices, both liberals and conservatives, appeared eager to rule by late June on what many see as the biggest constitutional case in decades.

JusticeStephen G. Breyer, joining others, said he did not see a problem with ruling on the mandate because it was enforced through a penalty, not a general tax.

"It's up to Congress, and they did not use the word 'tax,' " he said.

When Solicitor Gen. Donald Verrilli Jr. said the law required those without insurance to "pay a tax," Breyer corrected him. "Why do you keep saying 'tax?' " he asked.

Verrilli thanked him for the correction and called it a "tax penalty."

Justice Antonin Scalia said he was inclined to agree with Breyer, but for a different reason. Courts can usually rule directly on legal challenges unless the law makes clear they should hold off, he said. "I find it hard to think that this is clear. … Whatever else it is ... it's not clear," he said.

Chief JusticeJohn G. Roberts Jr.cited a historic precedent. In 1937, the Supreme Court upheld the Social Security Act and its new tax on workers to pay for old-age pensions. It was "quite similar to this," Roberts said, since the court ruled on the constitutional challenge without waiting for a taxpayer to seek a refund.

None of the justices spoke in favor of delaying a decision based on the Anti-Injunction Act, the old tax law. Both sides in the legal battle — the Obama administration and the 26 states joined by the National Federation of Independent Business — agreed the court should rule this year.

That has been a long-standing strategy of the law's opponents, who believe the legal battle strengthens their efforts to undermine its legitimacy. More recently, the Obama administration, which has been blamed by many Democrats for not working harder to sell the benefits of the law to the American public, also embraced the showdown as a political opportunity.

Although the president himself did not publicly celebrate the law's two-year anniversary last week, Obama's advisors and allies have become increasingly aggressive in attacking Republicans for threatening to take away many popular protections in the law, including expanded coverage for adult children, new aid for seniors on Medicare and new benefits for women.

Over the weekend, Obama political strategist David Plouffe predicted that by the end of the decade the law would be so popular that Democrats would be glad Republicans had termed it "Obamacare," a derisive label that backers of the law are embracing.

On Tuesday, the justices will turn their attention to a crucial question: Does Congress have the power to require everyone to have health insurance?

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