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Our friends at the Washington Post report:
The Supreme Court began its constitutional review of the health-care overhaul law Monday with a fundamental question: Is the court barred from making such a decision at this time?
After decisions on other cases were announced, the justices started hearing 90 minutes of argument about whether an obscure 19th-century law – the Anti-Injunction Act – means that the court cannot pass judgment on the law until its key provisions go into effect in 2014.
It is the rare issue on which both sides agree: the Obama administration lawyers and those representing the states and private organization challenging the new law argue that the Supreme Court should decide the constitutional question now.
The question being argued today is just a preliminary match to the main event, of course:
At the heart of the Patient Protection and Affordable Care Act is the requirement that almost all Americans obtain health insurance by 2014 or pay a penalty.
But first they’ve got to figure out of they can do that before someone actually has to pay that penalty. Since both sides agree they would rather not wait until 2015, we assume the Supreme Court will agree that the penalty isn’t a “tax” in the formal sense. This concession to expediency, largely by the Obama administration who could have argued that nothing can be challenged until such a penalty had actually been levied (that is, well after re-election), might have repercussions down the road–but the administration’s decision to press for a Supreme Court decision is said to reflect their confidence that the court won’t upend decades of Commerce Clause precedent to strike an admittedly massive blow against an incumbent President in an election year.
Opponents including Colorado Attorney General John Suthers very much hope they would do that–and would happily pick up the pieces of federal law later.
Safe to say, the immediate political stakes are rarely this high. A poll follows.