Human Resources News & Insights

Will high court push reform decision back to 2015?

When the Supreme Court convenes in March to consider the constitutionality of the health reform law’s individual mandate, it must first answer this: Is it even allowed to rule on the mandate?

The Anti-Injunction Act states that consumers cannot challenge a tax law until they are required to pay for it.

That law could in effect bar the high court from ruling on the individual mandate until its challengers are first required to pay its non-compliance penalty and seek a refund, which could push challenges to the law as far back as 2015.

What’s causing the confusion? The healthcare reform law does not call the penalty a “tax” per se. But it is contained in the Tax Code and would be collected by the Internal Revenue Service.

Two questions that must be answered

So before the Supreme Court can address the issue of whether or not the individual mandate is constitutional, it must essentially answer two questions first:

  • Is the penalty a tax?, and then
  • Does the Anti-Injunction Act bar the court from taking up the larger issue of the mandate’s constitutionality until the mandate — which is slated to take effect in 2014 — kicks in?

The Supreme Court will take on these issues beginning March 26, and it has appointed a special lawyer to argue that the case must wait until someone seeks a refund.

The Obama administration had argued that lawsuits should be delayed until after someone sought a refund on the tax penalty, but it has wavered on that stance since the argument’s failed to hold up in several courts.

So far, only one of the four U.S. appeals courts that have heard challenges to the mandate’s constitutionality has ruled that the Anti-Injunction act bars lawsuits against the mandate.

USA Today has reported an attorney representing the 26 states challenging the mandate has argued the Anti-Injunction Act does not apply because the challenge is to the mandate itself — not the penalty tied to it.

If the case is allowed to proceed

If it’s ultimately determined that the Anti-Injunction Act does not bar the high court from ruling on the constitutionality of the mandate, the court will then hear oral arguments on March 27 and March 28 on:

  • whether mandate is constitutional, and
  • if the rest of the reform law can stand if the individual mandate is deemed unconstitutional.

A ruling would then be expected by the end of June.

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  • Common Sense

    As a true blue American who often finds myself at political and philosophical odds with President Obama and Obamacare. However, I am glad when we can set aside our differences and find common ground. I have found such ground on the issue of whether or not the insurance mandate should be considered a tax or a fee.

    Obama has told us in a Stephanopolous/ABC interview that the insurance mandate is “absolutely not a tax…” He later went on to say that he absolutely disagrees with the notion that the mandate is a tax. He was very strong in his conviction.

    I agree with the President that the mandate is in fact a fee and “hope” that Obama will not “change” his convictions. I pray that Mr. Obama finally gets the chance to testify under oath to the Supreme Court to defend these statements as to whether or not that the mandate is a tax or a fee. After all Obama’s statements were instrumental in the passage of the law. Presenting the mandate as a fee enabled him and the proud Democrats to show Americans that the bill’s costs were able to be paid for without additional taxes. As the president, he was the one who signed the bill into law and I know as a man of honor, he will jump at the chance to defend his words.

    Go get ’em Mr. President. The nation is counting on you to stand behind the truth.

  • Matt


    I think you mean a true RED American…

    Just sayin’

  • Common Sense

    @ Matt–Actually I meant to say red, white and blue American. I’m just looking for truth, justice and the American way.

    Thanks for giving me the opportunity to clarify.

  • MMAN

    @CS…but what is the American way? I mean truth is truth but we all know that we can’t count on getting that from either side nowadays. And what is justice? You see, it all depends on what these things mean to you, to I, and to all the rest. Is justice everyone having the same access to healthcare just like everybody else or is justice being all those who have been fortunate enough to be successful (no doubt through hard work for the most part) but still there are alot of people who do work very hard every single day who still seem to fall through the cracks. I mean take Wal-Mart for example, it is obvious to see that they have some of the hardest working people there are (or else they wouldn’t have been so successful) but their healthcare stinks all in the name of passing “everyday low prices” to their customers. So is this justice? I’m not advocating one side or the other here but you think you have it all figured out…and I doubt that.

  • You are too clever by one half, Mr/Mrs Common Sense! One understands the dilemma you put M. Obama in: if he sticks with how he sold it, not a tax, he has consistency but loses his case. If he switches, he supports his case (more important to him by far) and loses consistency, which subtlety even most people in the business aren’t up to speed on. Nevertheless, I will remember to be outraged.

    I would like to see the DOJ likewise be consistent! In the Arizona immigration case, they argued that it was not necessary for the damage to be done and only then litigated, instead they argued for an injunction before any person had been injured and while the matter was to be studied.

    The FEDERAL judge, who REPORTS to DOJ, somehow amazingly came to the same conclusion. Unfortunately, the Obama Admin has already decided what is best for the US and is now shamelessly using whatever arguments at whatever times to get its way. Now that I think of it, I think that is what the Koran says to do, also, lie when you must. Sad state of affairs and requires education of the American peope as to what is going on.

  • BOBT12

    We the people shouldn’t be forced to buy government insurance. This law is as wrong as forcing people to get McDonald’s Happy Meals, it’s not the government’s dog-gone business.

  • Common Sense

    @MMAN Please do not submit false assertions like “you think you have it all figured out” I never implied any such thing. I have simply stated that I agree with the President on this issue and expressed the wish that Obama gets a chance to testify to his earlier statements.

    You asked me what is the “American way” and what is “justice” then expressed that it means different things to different people. I am sure it does. So let me clarify. This is what I “figured out” by studying American history.

    When I make these comments on the “American way” I am referring to principles established by the constitution. That includes a limited federal government with enumerated powers. (BTW, the individual mandate is not an enumerated power). When commenting on justice I am referencing the rights of citizens to protect life, liberty and property.

    “When a government protects the rights of its people and provides an adequate remedy for those whose rights have been violated, then that government is providing equal justice for all.
    W. Cleon Skousen

    When you (MMAN) speak of justice you are in essence saying “fairness”. Their is a subtle, but distinct difference and it needs to be noted. I agree that it is unfair that many hardworking people have “fallen through the cracks”. I will be the first one to tell you life is not fair (If you don’t believe me just ask my kids. I tell them that almost daily). If you are unhappy with the fairness of the constitution, the Founding Fathers have designed systems to amend it, however running amok of the constitution (Obamacare) is not the answer.

    The United States and the constitution were not designed to make life fair. They were designed to give equality of opportunity not equality of outcome. If you want the latter, I propose you move to Cuba or North Korea. They both have systems specifically designed for equality of outcome.

  • Common Sense

    @Kevin Thank you for your kind words. However, I take exception with one comment. You said “One understands the dilemma you put M. Obama in.” I have not put the president in any dilemma. I have simply pointed out the dilemma he has put himself in. I feel the need to do this because the media has been derelict in its reporting and the Dept. of Justice has argued against it’s own boss on this matter.

    The D.O.J. and the administration do indeed have a remarkable record of inconsistency and stonewalling when applying the law in a just manner. If there were truth in advertising the D.O.J would be forced to change their name to the Dept. Of Unjustice.

  • Zolton

    I agree with you, Common Sense! P Obama has put himself into this “dilemma” and he is certain that he is going to talk himself out of it, because the media does not hold him accountable on the things that he says. I do not understand why. Remember the old adage: You cannot talk yourself ot of things that you have acted yourself into.” Or, more popularly, “a little more talk and a lot less action.”

    In addition to the premium mandate, the thing that bothers me about O-care is the unbelieveable list of things that are mandatory to be covered. At least under state insurance rules the lobbyists for particular coverages had to go to all 57…sorry…50 states to get things on the mandated list. All of this just adds cost, in many ways needlessly, and with tremendous adverse selection and inattention to market forces.

    Last, I agree that “justice” and “the American Way” may have some different meanings to different people. However, those differences are about 10%, rather than just “differences”. I am sure that you and MMAN could identify 90% that you would agree on. Let’s build from there. Keep up the spirited discussion, always with civility and patience.

  • MMAN

    @Common Sense- I apologize if you feel I have offended or even to make it sound like I was disagreeing with you- because if you got this message through what I said, I did not mean it that way. I was just wondering where you were coming here. I say this because you said nothing about the “fairness of the U.S. Constitution” in your original post. However, I have added something further to what you have said “They were designed to give equality of opportunity not equality of outcome.” No doubt you are correct in this statement, but the problem is, even with the constitution, everyone does not have the same opportunities as others and that is why laws are passed in certain situations to level that playing field.

  • Common Sense

    @MMan You have not offended me. You are right, I did not say anything about fairness of the constitutuion in my original post. I mentioned “justice” in my second post in response to a wisecrack from Matt. I do realize that our system and Constitution are not perfect, but it is as good as any civilazation has ever had. I also realize that new laws need to be passed to solve inequities. But these laws should be constrained within the framework of the constitution, otherwise the whole system crumbles under a broken foundation. Much like Obamacare will crumble without the foundation of the unconstitutional indivdual mandate.