Well, did you watch the first set of Supreme Court oral arguments on the Affordable Care Act? The case that is bringing the arguments forward is Florida v. Department of Health & Human Services. If you were on the moon yesterday and missed the national news coverage of this exceptional court proceeding, you can catch the audio coverage on C-SPAN which has set up an oral arguments page on its website.
I found them pretty informative and definitely worth watching. The Justices were undoubtedly engaged in this debate. They interrupted Counsels (all of them at one point or another) to ask pointed questions and not waste time on lawyer meandering. All of them seemed to be coming down on the side of not punting this discussion another two years.
The topic for this set of questions was very arcane. To oversimplify the question, is the penalty imposed by the Affordable Care Act actually a tax which in turn means that the Anti-Injunction Act prohibits the Court from taking jurisdiction and addressing the constitutional issue until the tax actually goes into effect? The Justices are expected to answer that question before the end of the 2012 term in June.
In the meantime, let me just say that I was very impressed with Justice Sotomayor's questions and her manner. She was definitely on top of the issue and the cases and traded case names with counsel in a kind of verbal short-hand that peppered the discussion and led counsel in some instances in directions they may not necessarily have wanted to tread. In many ways, it was a history lesson on the hows and whys the act came into being.
One of the more interesting facets of this particular issue is that the Court appointed a counsel to argue that the Anti-Injunction Act applies in this instance. The Justices took that step because the two opposing sides on the case agree (for different reasons) that the Anti-Injunction Act does not apply and the Justices wanted the opposite arguments brief and argued.
Stay tuned for take #2 today when the Court visits the issue as to whether the individual mandate is constitutionally permitted. You can catch the audio coverage in its entirety on C-Span at 1PM and at other times throughout the day.