Health Reform: Ready, Set, Punt!

Punting, passing, and kicking issues down the field is a regular occurrence here in Washington -- what with handing the ball to states to define essential health insurance benefits, the several, almost government shutdowns, and Congress... well, enough said. But there is another under-reported, under-hyped potential play that could be called: punting the health reform ruling by the Supreme Court in 3 months.

Whoa. Game-changer. You mean there's a way to avoid making a life or death decision for PPACA and any political ramifications for Election 2012??

It all lies in the Tax Anti-Injunction Act. Simply put, the Act (which applies to more than what we usually think of when we say "tax") requires a person to have actually paid the contentious tax/penalty (whatever it is) before challenging it in court. However, the tax/penalty provision in PPACA does not kick in until 2015ish. Therefore, no one has yet paid it. How can there be a  challenge to something no one has been forced to do? Well, that is the argument -- that the claim at hand is premature and is not "properly before the court." That is... until 2015. This reflects the fundamental federal rule that an actual case or controversy must exist prior to judicial review (but in statutory form). The minute someone pays said tax/penalty, an actual case or controversy arises. Delaying Supreme Court review could favor health reform. It has been argued that greater time will yield a greater number of supporters as implementation is more wide-spread. So, the Court has a way to postpone deciding on the merits and reschedule the match-up if it so choses.

This issue has been allotted 1 full hour out of the 5.5 hours of oral argument, and is not without its weaknesses, but it will be interesting to see how this pans out in the super bowl of health reform litigation. Do you think the Supreme Court should postpone making a decision on health reform?

Health Reform Oral Arguments - Kind of a Big Deal

By now, I'm sure you've heard that the Supreme Court has scheduled hearings for the landmark Health Reform case in March. I'm sure you've also read that 5.5 hours have been allotted for said oral arguments. If not, 1) what rock are you living under? and 2) go here, here, and here. But a large chunk of the population spends 5.5 hours watching tv each day. Think about how much mind-numbing, eye-crossing CNN, Kardashians, Snookie and the Situation, Leno and Rachel Ray is consumed. So what's the big deal anyway?

Photos were not allowed, but this is what the interior of The Courtroom looks like from a model on display in the Holding Hall. Imagine being on the hot seat there. Intimidating much?

Let me help put this in perspective. Typically, the Supreme Court allows 1 hour of oral argument per case with each side given 30 minutes to present. I had the privilege of sitting in on a SCOTUS case; and let me tell you, half an hour is a fairly decent amount of time to talk (or rather...to be skewered and grilled by the justices). The justices, in most cases, have already made up their minds purely based off of briefs and research submitted prior to oral presentations and use that time to steer the presentation along their own agenda to make a point and perhaps sway other justices to decide a certain way. With that being said, 5.5 hours is FIVE and a half TIMES greater than the usual. Even one of the most important and controversial modern cases, Bush v. Gore, did not come close. That case single-handedly determined who the president of the United States would be, and oral arguments were limited to merely 90 minutes (see video). 90 minutes for the presidency compared to an epic 330 minutes for Health Reform. Hmmm.

Why does the Court need this much time considering they usually have their minds made up? Is this bad news for President Obama, Democrats, liberals, and supporters of Health Reform everywhere, because maybe it shows that the Supreme Court will not have an open and shut case? Or is the Court just attempting to have a fair presentation of extremely complex issues? What are your thoughts?