Court watchers, it’s on. Today the Supreme Court started hearing arguments on its most politically-charged case since Bush v. Gore. It’s the first time in a generation where the Court might strike down a major piece of national legislation. The Court will hear three days of oral argument on the Affordable Care Act (a.k.a. Obamacare).

This is big time. The entire country is watching.

And on day one, for the opening salvo in the biggest Court battle of the decade, we’re going to start with jurisdiction.

[CLEAR]

Still with me? I know it’s boring, but there’s an interesting political story here as we wait for the Court to get to the “main event” tomorrow….

The big thing everybody wants to talk about with Obamacare is whether the individual mandate to buy health insurance is constitutional. That will be argued tomorrow.

Today, the Court is asking whether or not the Affordable Care Act is actually a tax, and if it is, whether or not the Court has jurisdiction over the matter at this stage before the law has even been fully implemented. There’s a provision in the Anti-Injunction Act of 1867 that prevents the Court from ruling on the constitutionality a tax before the tax is collected. How kooky is this theory? None of the lower court litigants even want to make this argument, so the Court had to go out and find somebody to argue the issue in front of them. Covington & Burling partner Robert Long has received this honor — and I think he and his firm deserve to be name-checked because doing the boring stuff nobody cares about is what most lawyers do most of the time.

I’m listening to the oral arguments on CSPAN 3 right now, while I’m typing to keep myself awake. I gotta say, Justice Ginsburg sounds like she’s about to die. I’m serious. You guys should listen to her. Can we get her some medicine or something?

Still, Ginsburg sounds more alive than Clarence Thomas (hehe).

If you didn’t laugh at that joke, imagine Scalia said it. Everybody in the room has to over-laugh every time Scalia makes a funny as if they’ll look stupid and Scalia might smite them.

Anyway, most people think that the Court will find that it has jurisdiction here: and really, it would be perverse for them to put us through all of this just to say, “Actually, we have to wait until 2014 to decide this… have fun choosing your next president.”

But here’s the fun part: today, United States Solicitor General Don Verrilli will argue that the penalty provision under the health care mandate is not a tax. He’s going to say that the person who doesn’t purchase health care and pays the penalty is not paying a tax. But tomorrow, when Paul Clement makes the argument that this bill is an unconstitutional extension of the interstate commerce clause, Verrilli will basically argue that the government has the power to do this under its taxing power.

Even more fun, if Obama and Congress had just made this a tax from the start, then there would be no constitutional issue about this law at all. Oh, but they didn’t want to use the “tax” word because they accept the Republican premise that “taxes are bad.” So they twisted themselves into this mandate and penalty bunch that might get them in trouble with the conservatives on the Court.

So let’s count they ways the Democrats screwed up the Affordable Care Act:

  • They abandoned single payer for a mandate approach that Republicans favored in foolish hope that they’d get Republican votes, which of course, they did not.
  • They tried to get cute with the tax issue to avoid the bad optics.
  • They lost the messaging war.
  • The full law still hasn’t taken effect yet, so most people don’t even know if the damn thing is going to help them or not.

I don’t know, I accept responsibility. Hillary Clinton told us this would get botched, and I didn’t listen to her.

Come back tomorrow for day two: individual mandate day. And don’t forget to take our poll. I think this should be 6-3 to uphold the law, but you just can’t know how much Roberts or Kennedy will want to nail the president.

Argument recap: Moving on to the mandate [SCOTUS Blog]


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