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In an unusual move, the Supreme Court set an entire week's argument docket aside for the arguments on the Affordable Care Act. (The Supreme Court only has fourteen weeks of argument for the entire year in a typical year and normally hears six separate cases during a week). For more detailed information about the arguments Scotusblog has done an excellent job of following the cases and has a case page which includes a separate detailed analysis for each of the four issues. Monday's morning argument deals with the Anti-Tax Injunction Act. This law, originally passed after the Civil War, requires that most lawsuits challenging the validity of the tax must be postponed until after a challenging party has actually been required to pay the tax. At an early point in the case, the Administration suggested that the sum to be paid by those who do not get insurance might qualify as a tax. While the Administration no longer takes this position, the Fourth Circuit (and one of the judges on the DC Circuit) have held that the Anti-Tax Injunction Act does apply. Since the Administration has backed off from its earlier position, the Court appointed a lawyer to argue on behalf of the position taken by the Fourth Circuit. Three key things about the Anti-Tax Injunction Act. First, it applies to other taxes beyond the Affordable Care Act. Thus, the Administration has taken a position supporting a broad interpretation of the Anti-Tax Injunction Act (merely suggesting that this fee is not a tax), but the challengers (the National Federation of Independent Businesses and 26 states) have argued for a narrow interpretation that greatly restricts the availability of the act in other cases. Second, the biggest hallmark of the Rehnquist and Roberts Courts have been a tendency to support procedural rules that prevent parties from ever raising a claim in court. Third, this issue is really about the minutia of statutory construction what did those members of Congress in the 1860s mean by a tax and does the fee established by the Affordable Care Act fit that technical definition. The Court has given the Court appointed attorney 40 minutes, the Solicitor General 30 minutes, and the challengers 20 minutes. (Guess who is not getting what they want on this issue) Tuesday's morning argument is the big enchilda -- the constitutionality of the individual mandate. Not much more needsto be said about this issue that has not already been said. There are three clauses of the Constitution at issue here (all part of Article I, Section 8) -- the commerce clause, the tax and spend clause, and the necessary and proper clause. While the severability argument is not until Wednesday, the positions taken by the parties on that issue show that the Administration has thought more about the Necessary and Proper Clause than has the other side. Two things to look for when the audio and transcript is released on Tuesday afternoon. How many references are made to the 1792 Militia Act which required every able-bodied man to own a firearm? Is any mention made of the fact that one of the plaintiffs had to file bankruptcy due to health care costs?
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