Breyer has taken a strong position in oral arguments today that the penalty is not a tax at all. In today's context, this means that the anti-injunction Act doesn't apply and so that case can be heard now rather than only after the penalty has been assessed.
Given that Breyer is likely to vote to uphold the individual mandate, this apparently means that the "liberal" wing of the court has not chosen to adopt the argument of many that the penalty is a "tax" and therefore permitted by Congress power to levy and collect taxes.
That leaves the commerce clause as the only argument left for upholding the mandate.
The question of whether the mandate is more like Wickard and Gonzales and Wirtz or more like Lopez and Morisson will be an interesting one.
http://en.wikipedia.org/wiki/Wickard_v._Filburn (Congress can regulate private wheat growing farms)
http://en.wikipedia.org/wiki/Gonzales_v._raich (Congress can prohibit private people from growing marijuana)
http://www.law.cornell.edu/supct/html/historics/USSC_CR_0392_0183_ZS.html (minimum wage law upheld)
http://en.wikipedia.org/wiki/United_States_v._Lopez (federal guns free school zone act struck down)
http://en.wikipedia.org/wiki/United_States_v._Morrison (federal cause of action for gender-based violence struck down)
I'm going to try to listen to as much of tomorrow's oral argument as I can (http://www.c-span.org/).
Today's is not as interesting, as I think it's a foregone conclusion that the Court is not going to duck the case by declaring it unripe.
Originally posted by sh76I have read that at least 8 of the 9 members wish to avoid the antiquated anti-injunction Act formality, and go straight to the meat. That today was really the calm before the storm, and that Tue and Wed will be the important stuff, and the Court will find a way to side step having to wait to hear the substance of the case only after the penalty has been assessed.
Breyer has taken a strong position in oral arguments today that the penalty is not a tax at all. In today's context, this means that the anti-injunction Act doesn't apply and so that case can be heard now rather than only after the penalty has been assessed.
Given that Breyer is likely to vote to uphold the individual mandate, this apparently means that the ...[text shortened]... regone conclusion that the Court is not going to duck the case by declaring it unripe.
Originally posted by badmoonI couldn't disagree more with that assessment. Regardless of whether you think it should stand, the individual mandate is an unprecedented extension of federal power. Aside from protecting individual rights, the Supreme Court's primary function is to address federalism and separation of powers issues. The lower courts are generally capable of statutory interpretation and applying the law to the facts in the vast majority of cases.
I agree. It will also be found that this political court has made a huge mistake in taking this up.
If the Supreme Court will not determine the extent of Congressional authority in the context of one of the most critical pieces of legislation passed in the past 40 years, really, why even have a Supreme Court?
Originally posted by sh76I relate it to SSI, quite frankly. As for a precedent, G Washington once made a requiremant that all owned guns.
I couldn't disagree more with that assessment. Regardless of whether you think it should stand, the individual mandate is an unprecedented extension of federal power. Aside from protecting individual rights, the Supreme Court's primary function is to address federalism and separation of powers issues. The lower courts are generally capable of statutory interpre ...[text shortened]... ical pieces of legislation passed in the past 40 years, really, why even have a Supreme Court?
The Court did not have to take this up. It is rare that they would bother with overturning a passed legislation, that is why I call this event political.