One thing was clear out of the Supreme Court's opening session Monday on the federal health care overhaul -- the justices are eager to issue a ruling, and unlikely to punt.
The anticipation over how the court might rule on the merits of the law will have to wait another day, as the justices revealed very little about their views during opening arguments. What came out of the day's 90-minute session -- the first of three days covering four unique challenges -- is that the justices are poised to decide this year on the constitutional validity of the controversial law.
The justices were presented with a challenge Monday that, if upheld, could push the case off until early 2015. The issue before the judges was whether an obscure 1867 tax law prohibits lawsuits, like the ones challenging the health care law, from going forward.
The justices signaled that the technicality would probably not hold up the case, or prevent the justices from issuing a ruling on whether the law's controversial individual mandate is constitutional. The argument over that volatile issue is scheduled for Tuesday.
The idea that lawsuits challenging the law could be blocked was held by several lower federal court judges and was assigned to Washington, D.C., lawyer Robert Long to defend Monday. It is premised on the belief that the 1867 law known as the Anti-Injunction Act forbids lawsuits against federal tax policies until after someone has actually paid the tax.
But from the outset of Monday's arguments it was clear the justices weren't too sympathetic to that view because of the language Congress eventually used in crafting the law. The Affordable Care Act says the cost for not complying with the requirement to obtain health insurance is a penalty -- not a tax.
"Congress has nowhere used the word 'tax,'" Justice Stephen Breyer said to Long. "What it says is penalty."
Breyer was hardly the only justice to suggest the designated penalty isn't a tax.
"This is not a revenue-raising measure, because, if it's successful, they won't -- nobody will pay the penalty and there will be no revenue to raise," Justice Ruth Bader Ginsburg said.
Justice Elena Kagan also noted to Long that there are other parts of the law where the provisions of the AIA are specifically addressed. "It does not say that here. Wouldn't that suggest that Congress meant for a different result to obtain?" she said.
None of the justices seemed to think the AIA bar should be applied, perhaps leading to a unanimous opinion on this issue. There was also much discussion over a very technical question on the appropriate jurisdiction of handling these types of tax challenges. The justices seemed a bit more divided on this matter, but their resolution of this part of the case shouldn't impact their ability to get to the heart of the health care cases.
Perhaps the most telling exchange of the day came when Solicitor General Don Verrilli presented the government's case.
He argued that the specific language Congress used -- penalty rather than tax -- prevents an AIA inquiry. But Justice Samuel Alito asked how that position can also square with the government's view that when determining whether the ACA is legal under the Constitution's taxing authority, the exact words Congress used are less significant.
"General Verrilli, today you are arguing that the penalty is not a tax," Alito asked. "Tomorrow you are going to be back and you will be arguing that the penalty is a tax. Has the Court ever held that something that is a tax for purposes of the taxing power under the Constitution is not a tax under the Anti-Injunction Act? "
Alito's question suggests that he will further challenge Verrilli on Tuesday.
The tax-versus-penalty issue has been debated and discussed since the ACA passed two years ago. Even Verrilli himself got tripped up in using the nomenclature. In an exchange with Kagan, Verrilli said a person who fails to get insurance and pays the fine wouldn't have to admit to a violation of federal law. Kagan pressed, him asking why that was the case. Twice, he made mention of someone paying a tax. Breyer jumped in to ask, "Why do you keep saying tax?"
Stepping over the laughter in the courtroom, Verrilli clarified himself to say "tax penalty" and thanked the justice for calling the error to his attention.