Day One of the oral arguments in the constitutional challenge to the Affordable Care Act put the Supreme Court’s many strengths on display.  Everyone came prepared, including the nine Justices, and presented their cases and questions cogently and persuasively.  Tim Jost’s outstanding blog post provides a detailed description and in-depth analysis of the Court’s discussion of the Tax Anti-Injunction Act. Sara Rosenbaum’s and Wendy Mariner’s Health Affairs Blog post also shed light on this discussion.

My purpose here is to draw four more general lessons from yesterday’s events.

  1. The issues in the case are interconnected.  The week’s oral argument is divided into four parts: the Tax Anti-Injunction Act (Monday), the minimum coverage mandate (Tuesday), and the Medicaid expansion and the question of severability (Wednesday).  The Tax Anti-Injunction Act was billed as a threshold issue, potentially rendering large parts of the Affordable Care Act temporarily non-justiciable.  But the advocates took every opportunity to argue their positions on other parts of the case as well.   And the Justices encouraged it.  As a result, significant portions of the day’s discussion strayed into the mandate itself, as opposed to the tax penalty for not complying with it, and into the controversial expansion of the Medicaid program.  It remains to be seen whether this approach will help the Court better understand the big picture or just confuse the Justices with half-completed thoughts.
  2. Delay might be justified, but nobody mentioned it.   If the Court decides that the IRS-administered penalty is a tax for purposes of the Anti-Injunction Act, and that the Act constrains the courts’ jurisdiction, it could refrain from ruling on the constitutionality of the individual mandate until after the 2012 presidential election, and perhaps the 2014 midterm elections.  The Justices showed no inclination in today’s session to delay a decision on the merits, and neither party in the litigation urged that outcome.  Still, the argument that the Anti-Injunction Act applies was made by a private lawyer whom the Court had requested to take that position, and that lawyer’s able performance may not go to waste.   Delay would not be a selfish or cowardly act.  Where (as here) individual constitutional rights are not clearly threatened, the Court may responsibly prefer to let the institutions of democracy work more on health reform before the Court interposes its undemocratic but definitive view.  If the rest of the week’s arguments do not lead the Court in a clear direction, don’t be shocked if the Anti-Injunction Act resurfaces in the final ruling.
  3. It isn’t about policy.  An old saw of appellate advocacy advises arguing the facts when the law is against you, arguing the law when the facts are against you, and arguing policy only when both the law and the facts are against you.   Today’s argument was about law and facts.  Resolving differences among previous Supreme Court decisions and parsing statutory text dominated the discussion.  Only Justice Breyer focused on the Tax Anti-Injunction Act’s core rationale as a guide to its proper interpretation.  That pattern is likely to continue for the rest of the week, with the policy underpinnings of the Affordable Care Act staying largely in the background.
  4. The Administration shouldn’t overplay its hand.  Representing the United States in the Supreme Court confers a huge advantage.  The Justices assume that the government’s position is sensible, and that its lawyers are capable and honest.  The Solicitor General enjoys a comfort level during oral argument second only to that of the Justices; it may be their home, but he is allowed to help himself from the refrigerator.  In today’s argument, for example, General Verrilli was the only advocate to interrupt a Justice.  But these privileges can backfire if self-interest seems to outweigh logic in the government’s positions.  Witness the exchange with Justice Alito over the potential inconsistency between arguing that the mandate is an exercise of Congress’s constitutional power to tax and arguing that the penalty for failing to comply with the mandate is not a tax for purposes of the Anti-Injunction Act.  If the Court decides that the Congress and the Administration drafted the Affordable Care Act in its current form only because more clearly constitutional approaches were too politically risky, the government’s advantages may evaporate.

Editor’s Note: William Sage signed on to two amicus briefs filed by health law professors: one supporting the constitutionality of the ACA’s minimum coverage provision organized by Wendy Mariner and Mark Hall, and one supporting the constitutionality of the statute’s Medicaid expansion organized by Kevin Outterson.