SCOTUS Day 1 on the Affordable Care Act

Posted by AzBlueMeanie:

Lyle Denniston at SCOTUSblog has a lengthy summary of today's U.S. Supreme Court arguments on the Affordable Care Act, specifically on the issue of whether the Anti-Injunction Act of 1867 is a procedural bar to the Court deciding the case. The Q&A from the Justices on this issue would appear to suggest that they agree with U.S. Solicitor General Donald B. Verrilli, Jr., who argued that the Anti-Injunction Act is not a procedural bar to the court deciding this case. Argument recap: Moving on to the mandate (snippets):

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.

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[A]n 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.

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[M]ost 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.

Verrilli had to take a bit of a tease that he was arguing on Monday that the mandate was not a tax but would be arguing on Tuesday that it was (a seeming anomaly for which the Solicitor General did have an explanation), but his basic plea to move on to decide what he called “issues of great moment” got a largely sympathetic hearing.

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That mood then set the stage for Solicitor General Verrilli’s argument, and while the straddle he was advocating did not draw an enthusiastic embrace, the basic line of his reasoning seemed to be attractive to the Court — that is, that the Court should proceed to rule on the mandate.

The Court’s next argument on the Affordable Care Act, a two-hour hearing on the individual mandate itself, begins at 10 a.m. Tuesday.

Today's oral argument audio and transcript are now available from the Court.