The Supreme Court is poised to rule this summer on the constitutionality of the health care reform law’s requirement that Americans buy insurance or pay a tax penalty. But it has the legal option to delay a decision until at least 2014, and although the possibility has received little attention, new evidence suggests that justices are considering it more strongly.
The temporary escape hatch involves the Anti-Injunction Act, an age-old law that says courts may not halt a tax that isn’t yet being collected. (Under the Affordable Care Act, it won’t be collected until 2014.) Although the Fourth Circuit Court of Appeals last fall tossed out a lawsuit against the mandate on this basis, most courts have decreed that the statute doesn’t apply here.
But further evidence that justices may disagree came Tuesday, when the Supreme Court increased the time for next month’s oral arguments from 5.5 hours to 6 hours, allotting an extra half hour to discuss the application of the Anti-Injunction Act. That means there will be a full hour and a half to discuss whether the court has the authority to rule on the health law this year.
Because the Obama administration and the plaintiffs agree that the AIA does not apply — arguing that the provision functions more as a penalty than a revenue-raising tax — the high court has appointed two veteran attorneys to argue that it does. The considerations come over the objections of Democrats and Republicans who each say they want a speedy ruling.
This might just be the high court doing its due diligence — the expectation remains that a final decision will be handed down by the end of June. But observers have noted that, judicial reasoning aside, Chief Justice John Roberts in particular may not want the Supreme Court to become an election-year piñata so soon after the 2010 Citizens United ruling. No matter the decision, the court is expected to take plenty of heat from the losing side.
Delaying the ruling to 2014 or beyond could also have damaging implications for the nation’s health care system. For instance, some states have been wary of implementing the Affordable Care Act’s insurance exchanges until a decision is handed down, and might continue hedging if it’s postponed. And in the event that the mandate is struck down, other aspects of the law may be in danger, and rolling them back years after the fact could be a costly, messy transition.
Sahil Kapur is a congressional reporter for TPM. He previously covered politics and public policy for numerous publications including The Guardian and The Huffington Post. He can be reached at sahil [at] talkingpointsmemo.com.