WASHINGTON — When the U.S. Supreme Court decided to take up health care reform, most observers probably assumed it would either strike down or uphold part or all of the landmark law requiring virtually every American to buy health insurance.
In fact, in its first day of oral arguments in the case, set for March 26, the court will weigh the question of whether now is the time to make any decision at all.
Under the 1867 Anti-Injunction Act, which bars courts from striking down tax laws before they take effect, the high court could decide to delay any decision until 2015, when penalties hit those refusing to buy health insurance.
The court had a variety of points on which to evaluate the Patient Protection and Affordable Care Act. Led by Florida, 26 states and the National Federation of Independent Business challenged the law. The U.S. solicitor general, essentially President Obama's lawyer, also asked the Supreme Court to hear the case.
The court did not take up every issue, so the fact that it has decided to rule on this question, essentially a technicality, is significant, some legal observers say.
But others view it almost as a housekeeping matter the court will dispatch before addressing the question of whether the federal government can require nearly every American to buy health insurance.
"If they don't deal with this, whatever side loses will say 'you didn't talk about the tax Anti-Injunction Act,' and no one wants that," said Bob Jarvis, a law professor at Nova Southeastern University who regularly provides legal analysis. "They want to issue an opinion that says we have everything buttoned up."
The Supreme Court would not have scheduled three days of back-to-back oral arguments if there were a "remote possibility" it was not going to take up the merits of the case, agreed John C. Eastman, a professor with the Center for Constitutional Jurisprudence at Chapman University School of Law in California.
The court has been known to deal with jurisdictional questions separately before scheduling arguments on issues on which it might not rule, he said.
Eastman, who has argued before the high court, guessed the Anti-Injunction Act would take "a short, two paragraphs" in whatever opinion it renders.
But Stuart Taylor Jr., a fellow at the Brookings Institution in Washington, surmised: "The justices' assignment of a full hour of oral argument to this question suggests that some take this issue very seriously.
"If the justices agree that the Anti-Injunction Act applies, this year's case will be perhaps the greatest anticlimax in Supreme Court history," he wrote in Kaiser Health News.
A Virginia appeals court already has taken that stance.
The 4th Circuit Court found that the penalty for not buying health insurance is essentially a tax and therefore courts cannot hear the case until after 2015, when the first taxes are imposed.
Three other appeals courts moved beyond the tax issue and ruled on whether health care reform was constitutional.
Only an Atlanta appeals court, which heard the Florida challenge, struck down any part of the law. It found an individual mandate to buy health insurance unconstitutional but upheld the rest of the law.
The Anti-Injunction Act was passed to prevent Americans who did not want to pay their taxes from simply suing and benefiting from the delay, regardless of whether they had a decent claim. The act says: "Taxes are the life-blood of government, and their prompt and certain availability an imperious need." As such, it requires citizens to pay up first and sue later for a refund.
If the court finds that the fine imposed by the Affordable Care Act is a tax and not a penalty, the Anti-Injunction Act could prevent the court from deciding the case.
Those who believe that it is a penalty and not a tax point out that citizens can avoid paying the fine by buying health insurance.
"Focusing on what the Anti-Injunction Act does shows you how weird this argument is," Eastman said.
Citizens will not be able to seek a refund for not buying health insurance, he said. "That looks a whole lot more like a penalty."
But Jarvis said the government fueled the argument that it is a tax when it decided to require citizens to report with their income tax return whether they have health insurance. Under the Affordable Care Act, if they don't have insurance, they have to pay a fine when they file their taxes.
"They put it into the tax code because they thought it was the easiest way to do it, but it could really come back to bite them," he said. "They have opened the door to an argument that they didn't have to fight."
Still, Jarvis believes the Supreme Court will not force insurance companies, businesses and states to begin spending millions to gear up for the individual health insurance mandate, which takes effect in 2014, only to have to wait for a decision in 2015.
He predicts the court will say: "We are going to strike down Obamacare or uphold, but we're not going to come back to 2015. There's just too much at stake."
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