It looks like the court isn’t interested in the argument that it can’t even rule on ObamaCare until its tax-that-is-not-a-tax-except-when-Obama-says-it’s-a-tax. Arguments will continue, and it will take on the law’s constitutionality head-on:
When Chief Justice John G. Roberts, Jr., commented at the end of Monday’s first day of hearings on the health care law, “We’ll continue argument on this case tomorrow,” it seemed to have a secondary meaning even if he did not intend it. The comments and questions of the Justices during the 89-minute exchange left the distinct impression that they are prepared to rule on the constitutionality of the mandate that individuals must buy health insurance, and not push the issue off into the future. The exact route they would take was a bit uncertain, but their skepticism about taking a pass now was clear.
That did not mean, of course, that the Court would ultimately uphold the mandate. That is tomorrow’s question, although the Justices asked many questions about the mandate, showing they are deeply curious about its scope and meaning. But an argument that at times seemed almost to bog down in the dense complexity of the tax code pointed toward a refusal to bar the lawsuits that had challenged the mandate and had put its survival before the Court this week. One of the telltale signs of that sentiment was that not one Justice, and no lawyer at the lectern, said that it would be premature and a contradiction of the Court’s tradition against deciding constitutional issues prematurely for the Court to rule promptly on the mandate’s validity.
The Court had selected a Washington attorney from outside the case, Robert A. Long, Jr., to make an argument that the Supreme Court and no lower court had any authority to rule on the challenges to the mandate, on the theory that the requirement is a part of the tax code and the Anti-Injunction Act of 1867 had closed the courthouse doors to any lawsuit against a tax law before it took effect. But the most difficult questions from the bench Monday were aimed at Long’s argument. And most of the Court seemed to be leaning toward some version or variation of the argument made by Solicitor General Donald B. Verrilli, Jr., speaking for a government that very much wants a final decision soon on the mandate.
Update: SCOTUS has posted audio of today’s arguments online, here. And here is the full transcript. That’s much faster than the Democrats posted the law that’s being debated, despite their promises to post it before it was voted on.
Update: The first day.