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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