What the three-day ObamaCare Supreme Court arguments will cover

As the U.S. Supreme Court prepares to consider the fate of the federal health care reform law, Jim McTague of Barron’s offers a preview.

On Day 1, the court will hear arguments on whether a case can be brought at all. Tax lawyers argue that a law called the Tax Anti-Injunction Act forbids the federal courts from hearing suits aimed at restraining the assessment or the collection of any tax. Under that law, a plaintiff must first pay the tax and then challenge it in court by demanding a refund. Since the penalty for not having insurance won’t be collected by the Internal Revenue Service until 2015, the plaintiffs must wait until then to go to court, the tax experts claim. Obamacare opponents argue that the “penalty” is not a tax and therefore not subject to the Tax Anti-Injunction Act.

Andrew Pincus, a partner at the law firm Mayer Brown in Washington and an assistant to the solicitor general under Ronald Reagan, says Congress’ taxing power is “incredibly broad.” Other experts say the Congress does not have to use the magic word “tax’ for a revenue-raising device to actually be a tax.

Day 2 will focus on the main complaint—that the individual mandate violates the Commerce Clause by forcing people to buy a product they don’t want. This, opponents argue, is not regulating commerce. Obamacare’s supporters contend that people without insurance use emergency rooms and stick the public with the bill, and that the negative economic impact of their action is in fact commercial. Opponents argue that the mandate forces healthy people to purchase coverage they don’t need in order to subsidize insurers. Younger, healthy people more logically would purchase catastrophic-care polices, but none are available under the new law. …

… On Day 3, the justices will here arguments on “severability.” Some Obamacare opponents argue that if the individual mandate is declared unconstitutional, the entire act must fall because Congress didn’t write a severability clause into the law. Regardless of the outcome, expect cries of “foul!” and no immediate end to the controversy.