Obamacare just committed suicide before the SCOTUS

There have probably been a lot of smart people argue before the court. That doesn't change the fact that the court will base the majority of their legal reasoning on the briefs submitted by the parties. The parties have spent literally months writing the briefs, have an army of attorneys working on and tweaking the brief, and have included every conceivable case or analysis that supports their arguments in the brief. This will be taken under greater consideration than some statement made during a time constrained oral argument where justices are asking questions with their mind most likely already made up.

 

MR. LONG: Well, it's -- I mean -- perhaps a party could initiate an action without the act of cooperation of the court, but to maintain it from beginning to end, again, requires the court's cooperation. And even if -- I mean, if the Court were inclined to say as an initial matter, if this statute were coming before us for the first time today, given all of your recent decisions on jurisdiction, that you might be inclined to say this is not a jurisdictional statute, a lot of water has gone over the dam here. The Court has said multiple times that this is a jurisdictional statute.

 

This is called "foreshadowing", I think:

JUSTICE ALITO: Well, the Court said that many times, but is there any case in which the result would have been different if the Anti-Injunction Act were not viewed as jurisdictional but instead were viewed as a mandatory claims-processing -*

MR. LONG: There's -*

JUSTICE ALITO: -- rule.

MR. LONG: There -- there are certainly a number of cases where the Court dismissed saying it is jurisdictional.

 

CHIEF JUSTICE ROBERTS: Well, it seems -¬you can't separate those two points. The idea that Congress has acquiesced in what we have said only helps you if what we have said is fairly consistent. And you, yourself, point out in your brief that we've kind of gone back and forth on whether this is a jurisdictional provision or not. So, even if Congress acquiesced in it, I'm not sure what they acquiesced in.

 

JUSTICE KAGAN: Well, even since Williams Packing, there was South Carolina v. Regan. And that case can also be understood as a kind of equitable exception to the rule, which would be inconsistent with thinking that the rule is jurisdictional.

MR. LONG: Well, again, I mean, I think the best understanding of South Carolina v. Regan is not that its an equitable exception, but it's the court interpreting a jurisdictional statute as it would interpret any statute in light of its purpose, and deciding in that very special case, it's a very narrow exception, where the -¬

JUSTICE SOTOMAYOR: Mr. Long, in Bowles, the Court looked to the long history of appellate issues as being jurisdictional, in its traditional sense, not as a claim processing rule, but as a pure jurisdiction rule, the power of the Court to hear a case. From all the questions here, I count at least four cases in the Court's history where the Court has accepted a waiver by the Solicitor General and reached a tax issue. I have at least three cases, one of them just mentioned by Justice Kagan, where exceptions to that rule were read in. Given that history, regardless of how we define jurisdictional statutes versus claim processing statutes in recent times, isn't the fairer statement that Congress has accepted that in the extraordinary case we will hear the case?

MR. LONG: No. No, Justice Sotomayor, because in many of these amendments which have come in the '70s and the '90s and the 2000's, Congress has actually framed the limited exceptions to the Anti-Injunction Act in jurisdictional terms. And it's written many of the express exceptions by saying notwithstanding Section 7421 -¬

(Quick aside: I guess you can't also make a jackass drink, either)

JUSTICE SOTOMAYOR: But doesn't that just prove that it knows that the Court will impose a claim processing rule in many circumstances, and so, in those in which it specifically doesn't want the Court to, it has to be clearer?

MR. LONG: Well, but Congress says, notwithstanding 7421, the Court "shall have jurisdiction to restrain the assessment and collection of taxes in very limited" -¬

JUSTICE SOTOMAYOR: Could you go back to the question that Justice Alito asked. Assuming we find that this is not jurisdictional, what is the parade of horribles that you see occurring if we call this a mandatory claim processing rule? What kinds of cases do you imagine that courts will reach?

(I no more prefer a "folksy" humor in my Justices than in my Vice-Presidential candidates.)

MR. LONG: Right. Well, first of all, I think you would be saying that for the refund statute, as well as for the Anti-Injunction Act — which has very similar wording, so if the Anti-Injunction Act is not jurisdictional, I think that's also going to apply to the refund statute, the statute that says you have to first ask for a refund and then file, you know, within certain time — so it would be — it would be both of those statutes. And, you know, we are dealing with taxes here, if people -¬

JUSTICE SOTOMAYOR: That wasn't my question.

MR. LONG: I'm sorry.

JUSTICE SOTOMAYOR: My question was if we deem this a mandatory claim processing rule -¬

(Is there no ethical conflict in being both Justice and co-counsel for the plaintiffs, as she's doing here?)

MR. LONG: Right.

JUSTICE SOTOMAYOR: — what cases do you imagine courts will reach on what grounds? Assuming the government does its job and comes in and raises the AIA as an immediate defense -¬

MR. LONG: Well, that's -¬

JUSTICE SOTOMAYOR: — where can a Court then reach the question, despite -¬

MR. LONG: That would certainly be the first class of cases, it occurs to me, where, if the government does not raise it in a timely way, it could be waived. I would think plaintiffs would see if there was some clever way they could get a suit going that wouldn't immediately be apparent that -¬

JUSTICE SOTOMAYOR: Assumes the lack of competency of the government, which I don't, but what other types of cases?

JUSTICE SCALIA: Mr. Long, I don't think you are going to come up with any, but I think your response is you could say that about any jurisdictional rule. If it's not jurisdictional, what's going to happen is you are going to have an intelligent federal court deciding whether you are going to make an exception. And there will be no parade of horribles because all federal courts are intelligent.
So it seems to me it's a question you can't answer. It's a question which asks "why should there be any jurisdictional rules?" And you think there should be.

MR. LONG: Well, and, Justice Scalia, I mean, honestly, I can't predict what would happen, but I would say that not all people who litigate about federal taxes are necessarily rational. And I think there would be a great -¬

As opposed to what others, who are necessarily rational?

 

Perhaps I'm misunderstanding the concept, but I'm not sure why people think they will necessarily have to pay for the uninsured. In fact, you do now anyway with higher premiums to cover the costs of those who get medical care without insurance. Requiring those to pay or pay a penalty, spreading out the costs, should, in theory, alleviate the average consumer costs. I think people get so consumed in the fiery rhetoric that they believe a host of untrue details, like this is some kind of government, universal health care (which, ironically, may be easier to argue constitutionality).

 

you don't seem to understand the concept of moral hazard. of course costs will go up.

 

JUSTICE BREYER: I just don't want you to lose the second half of your argument. And we have spent all the time so far on jurisdiction. And I accept, pretty much, I'm probably leaning in your favor on jurisdiction, but where I see the problem is in the second part, because the second part says "restraining the assessment or collection of any tax." Now, here, Congress has nowhere used the word "tax." What it says is penalty. Moreover, this is not in the Internal Revenue Code "but for purposes of collection."
And so why is this a tax? And I know you point to certain sentences that talk about taxes within the code —

MR. LONG: Right.

JUSTICE BREYER: — and this is not attached to a tax. It is attached to a health care requirement.

MR. LONG: Right.

JUSTICE BREYER: — so why does it fall within that word?

MR. LONG: Well, I mean, the first point is — our initial submission is you don't have to determine that this is a tax in order to find that the Anti-Injunction Act applies, because Congress very specifically said that it shall be assessed and collected in the same manner as a tax, even if it's a tax penalty and not a tax. So that's one —

JUSTICE BREYER: But that doesn't mean the AIA applies. I mean — and then they provide some exceptions, but it doesn't mean the AIA applies.
It says "in the same manner as." It is then attached to chapter 68, when that — it that references that as "being the manner of." Well, that it's being applied — or if it's being collected in the same manner as a tax doesn't automatically make it a tax, particularly since the reasons for the AIA are to prevent interference with revenue sources. And here, an advance attack on this does not interfere with the collection of revenues. I mean, that's — you have read the arguments, as have I. But I would like to know what you say succinctly in response to those arguments.

MR. LONG: So specifically on the argument that it — it is actually a tax, even setting aside the point that it should be assessed and collected in the same manner as a tax.
The Anti-Injunction Act uses the term "tax"; it doesn't define it. Somewhat to my surprise, "tax" is not defined anywhere in the Internal Revenue Code. In about the time that Congress passed the Anti-Injunction Act, tax had a very broad definition. It's broad enough to include this exaction, which is codified in the Internal Revenue Code. It's part of the taxpayers' annual income tax return. The amount of the liability and whether you owe the liability is based in part on your income. It's assessed and collected by the IRS.

JUSTICE SCALIA: There — there is at least some doubt about it, Mr. Long, for the reasons that Justice Breyer said, and I — I thought that we — we had a principle that ousters of jurisdiction are — are narrowly construed, that, unless it's clear, courts are not deprived of jurisdiction, and I find it hard to think that this is clear. Whatever else it is, it's easy to think that it's not clear.

MR. LONG: Well, I mean, the Anti-Injunction Act applies not only to every tax in the code, but, as far as I can tell, to every tax penalty in the code.

 

I am well aware of moral hazard, but it would still be spread amongst a large pool of individuals. Plus, people have moral hazard now as uninsured as costs are picked up through the payment of premiums by others.

 

JUSTICE GINSBURG: Mr. Long, you — you said before — and I think you were quite right — that the Tax Injunction Act is modeled on the Anti-Injunction Act, and, under the Tax Injunction Act, what can't be enjoined is an assessment for the purpose of raising revenue. The Tax Injunction Act does not apply to penalties that are designed to induce compliance with the law rather than to raise revenue. And 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.

First bold: A little encouragement never hurt anyone.
Second bold: She's telling the tale, here.

MR. LONG: Well, in — in Bob Jones the Court said that they had gotten out of the business of trying to determine whether an exaction is primarily revenue raising or primarily regulatory. And this one certainly raises — is expected to raise very substantial amounts of revenues, at least $4 billion a year by the -¬

Obviously, most Americans are too busy eating Funyuns and hitting the redial button for the American Idol run-off later tonight to notice this, but it says it all.

JUSTICE SOTOMAYOR: But Bob Jones involved a statute where it denominated the exaction as a tax.

MR. LONG: That's -¬

JUSTICE SOTOMAYOR: Here we have one where the Congress is not denominating it as a tax; it's denominating it as a penalty.

MR. LONG: That's — that's absolutely right, and that's obviously why, if it were called a tax, there would be absolutely no question that the Anti-Injunction Act applies.

JUSTICE SOTOMAYOR: Absolutely. But even the section of the Code that you referred to previously, the one following 7421, the AIA, it does very clearly make a difference — 7422 — make a difference between tax and penalties. It's very explicit.

It might not make a damn in how she votes to rule, but give her credit for not allowing him to avoid this point.

 

That's not really my point. I'm saying speaking before the Supreme Court is an unbelievable task and requires the sort of nerve, intelligence, and quick wit that very few people possess. If you are really really good at it -- like Daniel Webster was -- you get asked to do it frequently and can make a nice launching pad of a career out of it. If you are terrible, no sweat, you go back and have a nice law practice somewhere.

 

yes but if you know you can get insurance no matter what why would you pay for insurance in the meantime? yes there is a penalty, but the current one proposed will be far less than the insurance cost. if you are currently uninsured you cannot assume that all of your medical needs will be taken care of in the event of an accident. also if you have means medicare will not pay your costs. therefore many currently pay for insurance that later will not. and many people who are uninsured currently do not go to the emergency room everytime they are sick. what happens when you force someone to buy insurance or give uninsured insurance? they will consume more of it, some far more than they would otherwise. simple economics.

 

How is this proposed Obamacare different from the healthcare system that Canada is currently under?

 

If you are in an accident or have cancer and are uninsured, it's also very unlikely that you won't deny yourself medical procedures, leaving massive medical bills that are often unpaid and balanced by the premiums paid by those with insurance. The bill has the dual benefit of not bankrupting those people while keeping the cost spread out amongst a very large pool of individuals.

 

Because Canada's healthcare system is government run, and ours wouldn't be under obamacare. Obamacare essentially just regulates private insurance.

 

Why shouldn't we bankrupt a person that chooses to not carry insurance?

Freedom to choose, and freedom to face consequences of said choices.

 

the overwelming majority of times you go to the doctor involves non life threatening diseases. those same people who wont pay their bills are the same who i will have to provide healthcare for free under the bill so i'm not sure how I end up ahead there. quite the opposite. and i don't understand why we have to protect people from themselves. who cares if they go bankrupt?

 

For example, my fiance's mother was diagnosed with colon cancer. Her husband had recently been laid off work. That was the source of their health insurance. They could not afford health insurance. Then, she contracted cancer and couldn't have been insured even if she could have afforded it because of her pre-existing condition. The position you are advocating is awfully insensitive and wreaks of someone that has never been in such a position as the people I just mentioned.

 

Are there not plans that a person can buy outside of job, especially short term for such a situation such as this? Did they have a rainy day fund? At any point did they speak to the medical providers and lay out the situation and try to work with them? I've been there and dealt with hospitals about stuff. They will work with you.

It sucks, and I feel horrible for her, but once again.....why is it my responsibility to pay for them?

 

I will not comment on the situation of your family, but there are a lot of people out there that could afford health insurance, but refuse to buy anything that doesn't cover every prescription and doctor visit.