Court action could prolong health care fight

WASHINGTON -- Next month's challenge to the Obama-sponsored health care law could affect the care available to most Americans, alter the balance of power between Washington and the states and remain a flash point through this presidential campaign.

Yet there is a path the Supreme Court could take when it hears the case that could delay for years any resolution of a main point of contention.

The core of the law is a requirement that most people buy health insurance by 2014 or face a tax penalty. But looming over the case is a federal policy that restricts the timing of lawsuits connected to the assessment and collection of "any tax."

On the first day of their historic session March 26-28, the justices will consider that policy and address whether people who challenge the insurance requirement must first pay the disputed tax and seek a refund before bringing a lawsuit. If the answer is yes, the legal fight over a key part of the law could be delayed, possibly until 2015.

None of the main parties to the litigation is arguing for that option, which would prolong confusion over the law's constitutionality. Yet the high court could find that the law demands it. Further, the nine justices are deeply divided ideologically, and the option might be a way to avoid deepening the fault lines and edge the court out of the spotlight this election year.

"For the justices, particularly Chief Justice John Roberts, this could become an attractive way to resolve the dispute," says Georgetown University law professor Michael Seidman. "It could lead to a more united front" among the justices.

But, Seidman and other legal analysts say, such a ruling would keep a cloud over the centerpiece of President Obama's domestic agenda.

It is difficult to predict how the justices would respond to the claim that the legality of the mandate requirement must be put off. They have taken the question seriously enough, however, to appoint a special lawyer to argue March 26 that the case must wait until someone seeks a refund.

When the law was passed in March 2010, President Obama and other supporters avoided calling the penalty a "tax." But it is contained in the Tax Code and would be collected by the Internal Revenue Service.

In the litigation, the position has won few lower court judges' votes. Still, it was adopted by one federal appeals court, the Richmond-based 4th Circuit, in a majority decision, and by one influential conservative judge, in a dissent on the Washington-based U.S. appeals court. "The Tax Code is never a walk in the park," D.C. Circuit appeals court Judge Brett Kavanaugh wrote in his dissent. "But the statutory analysis here leads to a firm conclusion that the (Tax) Anti-Injunction Act bars this suit."

Kavanaugh, a prominent conservative named to the D.C. Circuit in 2006, is a former law clerk to Justice Anthony Kennedy, a key vote on the high court. Kavanaugh did suggest that Congress could pass a law that allows an immediate challenge to the individual mandate, removing it from the tax code rule.

A tax or a penalty?