The Supreme Court on Monday seemed to be leaning against a procedural ruling that would postpone a decision until after 2014 on whether the healthcare reform law is unconstitutional.
Monday’s session, which launched three days of oral arguments in the historic case, also highlighted a potential weakness in the Obama administration’s defense of the healthcare law’s mandate that people buy insurance.
But in urging that the justices should not postpone a decision until the mandate takes effect, sometime after 2014, the administration has had to argue that the mandate is not a tax.
Justice Samuel Alito raised the issue as Solicitor General Donald Verrilli Jr. argued Monday that the fine is a not a tax.
“Tomorrow you’re going to be back, and you’re going to be arguing that the penalty is a tax,” Alito said.
Justice Ruth Bader Ginsburg was also skeptical of the tax argument, saying the penalty was designed to enforce the mandate — not to raise money.
“This is not a revenue-raising measure, because, if it's successful, nobody will pay the penalty and there will be no revenue to raise,” she said.
For all the historical weight the case carries, the tax-versus-penalty issue brought a few moments of levity to the proceedings. Justice Stephen Breyer jumped in during an exchange in which Verrilli repeatedly referred to the fine as a tax.
“Why do you keep saying ‘tax?’ ” he interjected, to laughter from the audience.
Verrilli quickly returned to calling it a “tax penalty.”
Although that distinction could cause problems during Tuesday’s arguments on the constitutional merits of the mandate, the justices seemed inclined during Monday’s arguments to side with the Justice Department and issue a ruling now.
Attorney Robert Long, the outside counsel appointed by the court to make the case that it should postpone a ruling, saw his argument meet resistance from several of the justices.
"Aren't you trying to rewrite the statute, in a way?" Justice Elena Kagan asked him, as he argued that the mandate and the penalty to enforce it are separate issues.
Twenty-six states and the National Federation of Independent Business are challenging the law’s individual mandate, which requires most Americans to either buy insurance or pay a penalty. The landmark case marks the first time in 75 years that a sitting president’s signature domestic achievement could be overturned at the height of his reelection campaign.
Both the Obama administration and the states that filed the suit agree the court should rule promptly.
Randy Barnett, legal counsel for the NFIB, said the justices appeared to indicate during Monday's arguments skepticism that the penalty for not buying insurance is a tax, something he said was a good sign for his side.
“Most of the justices seem skeptical of the claim that the mandate and penalty are a tax," Barnett said in a statement. "They seem ready, willing, and able to reach the merit of the commerce clause claim.”
The consideration of Obama's healthcare law is one of the most anticipated decisions in the court's history, and people began lining up for one of the few, prized seats in the courtroom on Friday. By Monday, the line went around the block for a seat inside, and many people were giving up their seats on Monday to keep their place in line for Tuesday's session, when the court considers the constitutionality of the mandate.
GOP presidential candidate Rick Santorum showed up on the court's steps to draw attention to his campaign, and to take shots at GOP front-runner Mitt Romney, whom Santorum said championed a similar healthcare law for Massachusetts as that state's governor.
Santorum has argued that Romney would be a poor candidate for the GOP in the fall because he will not be able to take advantage of the issue.
Polls suggest the law remains unpopular, with 50 percent of voters in a poll by The Hill saying it should be overturned.
—This story was posted at 11:56 a.m. and updated at 3:14 p.m.