Supreme Court dives into health care debate

— -- WASHINGTON - The Supreme Court opened three days of historic oral arguments on the fate of President Obama's health care law by sharply questioning whether an 1867 law bars them from even considering whether the government can require Americans to purchase health insurance.

At the beginning of those arguments on Monday morning, justices on the court's liberal and conservative wings seemed skeptical that the law, known as the Anti-Injunction Act, would serve as a roadblock to deciding the constitutionality of one of the Obama administration's signature accomplishments. That law generally requires people to pay a tax before they challenge it in court.

The arguments had little to do with the core constitutional question - whether Congress can force people to buy health insurance - that has made the health care challenge one of the most-watched high court cases in a generation. Instead, the justices focused on a little-known tax law, and pointedly questioned whether it would bar challenges such as this one, or whether the health law's penalty should be considered a tax at all.

Justice Sonia Sotomayor said that she counted at least four cases in which the high court had allowed challenges to go forward in spite of the law. Chief Justice John Roberts asked whether finding that they couldn't hear the health care challenge would require overturning at least one of those older cases. And Justice Stephen Breyer said that, while he agreed that the 1867 law might bar courts from hearing tax challenges in advance, he wasn't persuaded that the penalty for not buying insurance is a tax.

Justice Anthony Kennedy - often the court's swing vote - questioned why Congress would have used the language it did in the Anti-Injunction Act if it meant to strip courts of jurisdiction. And Justice Antonin Scalia said that the justices are barred from hearing a suit only when Congress clearly wanted that effect. "I find it hard to think that this is clear, whatever else it is," he told Washington attorney Robert Long.

Neither the Obama administration nor the private parties challenging the 2010 health law has asked the court to find that the tax law blocks them from hearing the case. Instead, the court appointed Long to make that argument in a 90-minute hearing Monday morning.

Long told the justices that the Anti-Injunction Act "imposes a pay-first, litigate later" rule that applies to "essentially every penalty" in the federal tax code. He said the penalty for failing to buy insurance functions as a tax, and that the Anti-Injunction Act leaves federal courts without jurisdiction to hear challenges to a tax before someone pays it. Were the justices to agree, courts would be unable to hear challenges to the law until 2015, which is the soonest anyone would be forced to pay.

But the justices seemed skeptical of that argument.

Justice Ruth Bader Ginsburg said that "this is not a revenue-raising measure, because if it is successful, no one will pay the penalty." That suggests it's not a tax, she told Long. Breyer said that previous cases under the Anti-Injunction Act had generally involved things that were either called taxes by lawmakers, or that clearly functioned as taxes.

Long replied that the penalties for not buying insurance are assessed by the IRS, and that they change based on a person's income - all features of taxes.

Paul Clement, a former U.S. solicitor general representing the 26 states challenging the 2010 law, has said the Anti-Injunction Act should be set aside because the main challenge focuses on the mandate to get insurance, not the penalty paid by those who don't. Most people, he has said, would make the rational choice to buy insurance, rather than pay for nothing.

The oral arguments will continue with 4½ hours on Tuesday and Wednesday, but the Anti-Injunction Act could render the whole thing moot.

Only one lower court, the 4th Circuit Court of Appeals in Richmond, Va., has ruled that the Anti-Injunction Act bars challenges to the health law.