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Health Care And The SCOTUS Day 1: Looks Like We’re Getting An Answer

Earlier today, the Supreme Court heard oral arguments in the least sexy issue presented by the Affordable Care Act case — whether a law known as the Tax Anti-Injunction Act prevents the justices from deciding whether the individual mandate is constitutional until after 2014. If today’s oral argument was any indication, the answer to that question is a resounding no. The justices almost universally expressed skepticism at the claim that the Anti-Injunction Act applies here, with a majority of them appearing to favor a particular reason for saying so.

As ThinkProgress previously explained, the Anti-Injunction Act does not permit anyone to bring a lawsuit trying to block the collection of a tax — taxpayers must first pay their taxes and then, if they believe that they were forced to pay too much, they are allowed to sue for a refund. This matters because the mandate functions by requiring most Americans to either carry insurance or pay slightly more income taxes — and since this provision has not yet taken effect, no one has actually payed the higher taxes they are required to pay under the mandate.

At today’s oral argument, however, the justices appeared poised to limit the scope of this law in a way that conveniently allows them to decide this case without a hitch. Going into today’s argument, the Tax Anti-Injunction Act had often been read as a “jurisdictional” statute — meaning that it prevents a lawsuit from moving forward even if the federal government decides that they want to allow the lawsuit to proceed anyway. DOJ argued today that the Anti-Injunction Act does not apply, and a cross-ideological bloc of justices seemed to indicate that they though DOJ’s actions constitutes a valid waiver of the Anti-Injunction bar. At various points in the argument, Chief Justice Roberts, and Justices Kennedy, Alito, Sotomayor, Kagan, all seemed to suggest that the Anti-Injunction Act might not be jurisdictional, and thus this lawsuit can proceed today.

It remains to be seen what theory the justices will adopt to say that the Tax Anti-Injunction Act does not apply to this lawsuit. One thing that appears quite clear, however, is that the justices are eager to move on to the merits of this case.

Special Topic

Santorum Doesn’t Rule Out That Romneycare Is Unconstitutional

Rick Santorum wouldn’t rule out that the sate individual mandate at the center of Mitt Romney’s Massachusetts health care reform is constitutional, during a press conference in front of the Supreme Court Monday afternoon. Santorum appeared in front of the Court as the justices began hearing a case challenging the constitutionality of the Affordable Care Act, which borrowed Romney’s mandate proposal and expanded it nationwide.

In response to a inquiry from ThinkProgress about whether or not he believed the “Romneycare mandate [is] constitutional,” Santorum remained circumspect and later refused to answer our follow-up question about repealing the mandate in Massachusetts:

VOLSKY: Senator, is the Romneycare mandate constitutional?

SANTORUM: I think, I’m having trouble hearing questions. But I would just say, whether I believe it’s constitutional. Look, ah, I don’t think, obviously I don’t think that Obamacare is constitutional and I didn’t advocate for a federal mandate at the federal level. I’ve always been for free market health care, not for government-run health care.

Watch it:

Conservatives have argued that the federal requirement violates the rights of the states, but few have claimed that states shouldn’t regulate their citizens’ behavior in the health care marketplace or that state laws are forbidden from mandating the purchase of a particular product like automobile insurance.

Santorum did oppose Gov. Rick Perry’s (R-TX) state mandate requiring women to receive HPV vaccines, describing it as “having little girls inoculated at the force and compulsion of the government.”

Special Topic

VIDEO: Supporters Proclaim They ‘Love Obamacare’ Outside Of Supreme Court Hearing

Check out our special webpage on the Obamacare lawsuit here.

Several dozen supporters of President Obama’s Affordable Care Act rallied outside of the Supreme Court this morning as the nine justices kicked off the first of three days of hearings on the constitutionality of the measure.

Backers of the health law sang “health care for everyone” to the tune of “Let it shine,” played the drums, and chanted “We Love Obamacare,” a reference to the Obama campaign’s embrace of the moniker. Supporters also held a press conference touting some of the early benefits of the new law and a group of doctors — Doctors For America — were on hand to discuss how the measure has already helped some of their patients.

The hearing also brought out six or seven Tea Party Nation members. The held signs saying the law is unconstitutional and chanted, “We Love The Constitution.” ThinkProgress spoke to several opponents of the law, who told us that they came to D.C. from Pennsylvania or as far away as California on their own volition to speak out against what they described as the government’s “take over” of health care. “Why isn’t the president or Congress on Obamacare if it’s so good?” asked one protester.

Watch the demonstrations:

War On Women: Anti-Contraception Lit Handed Out At Conservative Conference Headlined By Santorum, Paul Ryan

MILWAUKEE, Wisconsin — Republicans have gone to great lengths to cast the war on contraception and women’s health as a matter of religious liberty, but literature handed out at a key conservative conference this weekend had an unambiguous message for women: don’t use birth control.

Americans For Prosperity (AFP), a conservative Koch-funded organization, held its Defending The American Dream Summit in Milwaukee on Saturday with a few major headline speakers: Rick Santorum, Sen. Ron Johnson (R-WI), and Rep. Paul Ryan (R-WI). All three insisted that the Obama administration’s rule requiring insurance companies to cover contraception actually had nothing to do with contraception, but rather was an attack on religious liberty.

The next room from where they spoke, however, featured a bevy of literature warning women about the supposed dangers of birth control and telling them that “Chastity is the best choice for single people.” One handout explained that contraception is unnecessary because “Saving yourself for your future spouse is guaranteed to prevent pregnancy before marriage.” Another answered the question “Is it safe?” with a simple “No.” The literature on emergency contraception warned that it could cause cancer before telling women simply, “Be good to yourself. Don’t use the morning-after pill.”

The literature in question was not produced by AFP — the American Life League did the honors — but the Koch-backed group allowed space to hand it out to the 1,000 conservative activists in attendance.

A week ago, Sen. John McCain (R-AZ) pleaded with those in his party to “get off” the war on women. If a major conservative group disseminating literature attacking women’s reproductive health at its star-studded convention is any indication, the former GOP presidential nominee’s call is being completely ignored. With 70 percent of women agreeing that President Obama’s contraception requirement is a matter of women’s health, continuing to attack birth control could spell disaster for Republicans in the fall.

NEWS FLASH

Ron Johnson Agrees Unsubsidized Care Grows Government | ThinkProgess caught up with Sen. Ron Johnson (R-WI) outside of the Supreme Court this morning, as the justices prepared to consider the constitutionality of the Affordable Care Act. I asked him about Mitt Romney’s claim that the government should not be in the business of subsiding unsubsidized care for the uninsured. Johnson agreed that paying for the health costs of others grows the size of government, but insisted that requiring individuals to pay for their own care is unconstitutional. Watch it:

VIDEO: Romney Making The Policy Case For The Individual Mandate

EDITOR’S NOTE: ThinkProgress has launched a special webpage devoted to the Obamacare lawsuit before the Supreme Court. Please check it out here. We will be updating it periodically as developments occur.

This week, the federal government will appear before the Supreme Court to argue for the constitutionality of the Affordable Care Act’s individual mandate. The government will maintain, in part, that requiring everyone to purchase health insurance can eliminate “free riders” from the health care system and lower the nation’s spending on uncompensated care.

Interestingly, Mitt Romney has made the same argument since he mandated health care coverage in Massachusetts and continues to echo these claims in his presidential bid. So here — in one video — is Romney making the Obama administration’s policy case for requiring everyone to purchase insurance:

PRESS ADVISORY: ‘Republicans For Mandating Coverage’ Calls On The Supreme Court To Uphold Health Reform

March 26 – Republicans For Mandating Coverage (RMC) — a 51-member coalition representing Republicans who supported a federal health care mandate before President Barack Obama endorsed it — urged the Supreme Court on Monday to uphold the constitutionality of the Affordable Care Act’s individual mandate:

As Republicans who have co-sponsored or supported legislation requiring all Americans to purchase individual health insurance in 1993, 1994, 2007, and as recently as 2009, RMC believes that the mandate is based on the fundamental American principle of personal responsibility, rooted in conservative jurisprudence surrounding the Constitution’s Commerce and Necessary and Proper clauses.

In the words of Former Massachusetts Governor Mitt Romney, Republicans “don’t think the free market ever envisioned an idea that people would be able to do something and make other people pay for it.” “People are either going to buy insurance or they’re going to pay for their own care. They’re not going to say, ‘I got care and you Mr. Tax Payer or You Mr. Premium Payer are going to pay for me.”

‘Republicans For Mandating Coverage’ believes that this is an “American principle” — a principle of “personal responsibility” — that can be constitutionally enforced by the federal government.

Since nearly all Americans are already part of the health care marketplace and health care affects 17 percent of the economy, Congress is authorized to regulate health care behavior under the Commerce Clause. As conservative Judge Laurence Silberman put it: “At the time the Constitution was fashioned, to ‘regulate’ meant, as it does now, ‘[t]o adjust by rule or method,’ as well as ‘[t]o direct.’ To ‘direct,’ in turn, included ‘[t]o prescribe certain measure[s]; to mark out a certain course,’ and ‘[t]o order; to command.’ In other words, to ‘regulate’ can mean to require action, and nothing in the definition appears to limit that power only to those already active in relation to an interstate market.”

Read more

Morning CheckUp: March 26, 2012

Battle over health law reaches Supreme Court: “Two years and three days after President Barack Obama signed into law a health care overhaul aimed at extending medical insurance to more than 30 million Americans, the high court begins three days of hearings over the law’s validity.” [AP]

A legal guide to the health care arguments: Monday: Can the courts even rule on the constitutionality of the law right now Tuesday: Can the government force you to buy health insurance? Wednesday morning: If the mandate is struck down, do all the other provisions of the law fall? Wednesday afternoon: Is Congress unconstitutionally twisting the arms of the states by requiring them to expand Medicaid? [NPR]

Obama campaign manager calls Romney ‘Godfather’ of healthcare: “‘Mitt Romney is the godfather of our health care plan,’ Plouffe said on NBC’s Meet the Press. ‘If he is president, remarkably he is running away from that past, and he says he is going to try to throw all this away. We’re going to have a big fight about health care again.’” [Politico]

Tea Party to rally against health care law: “‘We want our freedom back,’ former GOP presidential candidate Herman Cain told hundreds of ralliers standing in the rain in Upper Senate Park, a few hundred yards from the steps of the Supreme Court. … The rally largely marks the big return to Washington for the Tea Party, a loose organization of grassroots groups that helped conservative Republicans take over the House in the 2010 wave election.” [Fox News]

McConnell says there are no plans to take another vote on health repeal: “Senate Minority Leader Mitch McConnell (R-KY) used the Republicans’ weekly address Saturday to call for dismantling President Obama’s sweeping healthcare law,” but said on Friday that “no decision has been made about whether to push for another vote to repeal the healthcare reform law before the presidential election.” [The Hill]

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