Supreme Court begins three days of hearings on Obama's health care overhaul plan

outside the Supreme Court on Monday. JACQUELYN MARTIN / Associated Press
outside the Supreme Court on Monday. JACQUELYN MARTIN / Associated Press (Protesters favoring health-care reform demonstrate)
Posted: March 27, 2012

WASHINGTON - As hundreds of demonstrators chanted and carried placards outside, the Supreme Court on Monday began an extraordinary three days of hearings on the emotionally and politically charged issue of President Obama's health care overhaul, but it gave no hint at the outset of how it might decide the case.

In 90 minutes of oral arguments before a packed courtroom, the justices took up the question of whether legal challenges to the law brought by 26 Republican state attorneys general and a national alliance of business owners was premature because central features of the law, signed in March 2010, have yet to take effect.

"I find it hard to think that this is clear," Justice Antonin Scalia, one of the court's conservatives, said at one point. "It is easy to think that it is not clear."

In agreeing to hear legal challenges to the Patient Protection and Affordable Care Act, President Obama's signature health-care law, the Supreme Court scheduled six hours of hearings over three days, the most in 45 years. No matter how the court rules, the case seems likely to play a pivotal role in this year's presidential race.

Most recent polls show more Americans oppose the law than support it, by margins of several percentage points, and that spread has held steady for months. Polls also show individual pieces of the law are popular when Americans are asked about them, such as parents being able to cover children up to age 26, no lifetime caps on benefits, and ensuring that people with pre-existing conditions can get coverage.

The scene outside the court's pillared, neoclassical building on Capitol Hill was reminiscent of 2000, when the court decided the contested election between Al Gore and George W. Bush, the last time it waded into such a politically volatile issue. Then, as now, advocates rallied just outside the court and banks of television cameras were a continuous presence.

Monday's protesters seemed divided between detractors and supporters.

"We don't want it," said Leonard Depere, a retired welder from Campton, N.H. He carried a sign held by many other opponents that read, "Don't believe the liberal media." He added, "We don't want government to handle health care of the masses."

But Ari Silver-Isenstadt, a Baltimore pediatrician, said many of the families he treated would have no chance of obtaining adequate health care without the Affordable Care Act, which seeks to extend coverage to as many as 32 million Americans without insurance. Children of the working poor are reasonably well covered in Maryland, he said. It's their parents who typically don't have it.

"I'm here for them," he said.

The hearing Monday centered on an obscure 1867 law, the Anti-Injunction Act, which bars lawsuits aimed at overturning federal taxes before the government has begun to collect them. The purpose was to prevent lawsuits from interfering with the government's ability to collect money it needs to function.

Obama's health-care plan hinges to a great degree on a requirement that all Americans who lack coverage and are not exempt must obtain insurance. The law provides subsidies to those who need help paying for coverage.

If they don't get insurance, they must pay a penalty to the IRS, by far the most controversial aspect of the law. The issue Monday turned on whether that requirement could be deemed a tax.

Neither the challengers of the law, 26 Republican state attorneys general and the National Federation of Independent Business, nor the Obama administration support the argument that the law imposes a tax. Both sides want the Supreme Court to rule on the constitutionality of the health-care law.

But the U.S. Court of Appeals for the Fourth Circuit in Richmond, Va., has said the 1867 anti-injunction act applies. So the Supreme Court agreed to consider the question and appointed a lawyer, Robert Long, of the firm Covington & Burling, to argue that federal courts can't rule on the case until the tax is collected.

A decision to turn down the challenges would put off the case until at least 2015. That is because the penalty for not carrying insurance doesn't take effect until 2014 and the levy would not be imposed until the next year, when Americans are required to report their health-insurance status to the IRS.

Long and U.S. Solicitor General Donald Verrilli, who said the law does not apply in this instance, were queried intensively by the justices.

"Congress has never called this a tax, so why is it a tax?" Justice Stephen Breyer, one of the more liberal members of the court, asked at one point. "It's up to Congress, and they did not use the word tax."

The court will turn on Tuesday to the central constitutional issue raised by the case, whether Congress has the authority to require individual citizens without coverage to buy health insurance.

The government has argued that it does, because those without insurance often receive free treatment in emergency rooms or can't pay their other hospital bills, and that cost is passed along to health insurers, government, and other payers. Uninsured patients also tend to delay getting needed care, so overall, they are sicker and die sooner.

Opponents insist that permitting the federal government to require people to buy health insurance would mark an unprecedented expansion of federal power and that in any event, the government could fashion more modest solutions. Those could include setting up high-risk insurance pools to cover people currently excluded from coverage by insurance companies who consider them too risky to insure. That idea is already included in the federal law.

On Wednesday, the justices have scheduled a full day of arguments. The court will consider whether the law's expansion of Medicaid, the health-care program for the poor run by the state and federal governments, is a coercive abuse of federal authority, as the state opponents allege, or a permissible exercise of the federal government's taxing and spending powers.

It will also take up the question of whether other aspects of the law, such as a requirement that insurers provide coverage regardless of a person's health status, can survive if other parts of the law are struck down.

Contact Chris Mondics at 215-854-5957 or

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