PPACA Oral Arguments Transcript: Day 1 (with audio recording)

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PPACA Oral Arguments Transcript: Day 1 (with audio recording)

By Allison Bell

March 26, 2012

U.S. Supreme Court justices kicked off the first day of oral arguments on the constitutionality of the Patient Protection and Affordable Care Act of 2010 (PPACA) with tough questions about why they should or should not put off hearing challenges till after the law has taken effect.

Robert Long, a lawyer representing "friends of the court," tried to make the case that the Tax Injunction Act forbids the federal courts from hearing challenges to new taxes — including the penalties individuals might have to pay if they failed to buy the minimum level of health coverage required by PPACA — until the taxes have taken effect.

Donald Verrilli Jr., the solicitor general for the Obama administration, and Greg Katsas, who represented the National Federation for Independent Business, Nashville, Tenn., and the 26 states that are trying to overturn PPACA, argued that the federal courts already have jurisdiction over the constitutionality of the individual coverage mandate penalty.

Katsas said the Supreme Court can rule on the challenge because PPACA opponents are separating the challenge of the coverage ownership requirement from the penalty provision.

Chief Justice John Roberts questioned that line of reasoning.

"it seems very artificial to separate the punishment from the crime," Roberts said.

Earlier, however, when Long was arguing in favor of using the Tax Injunction Act to knock out the suit, Justice Ruth Bader Ginsubrg questioned whether the PPACA penalty is really a tax for purposes of applying the act.

"Mr. Long, you said before — and I think you were quite right — that the Tax Injunction Act is modeled on the Anti-Injunction Act," Ginsburg said. "And, under the Tax Injunction Act, what can’t be enjoined is an assessment for the purpose of raising revenue. The Tax Injunction Act does not apply to penalties that are designed to induce compliance with the law, rather than to raise revenue. And this is not a revenue-raising measure because, if it’s successful, they — nobody will pay the penalty, and there will be no revenue to raise."

Justice Elena Kagan suggested that Long was trying to rewrite PPACA.

"You are trying to suggest that the statute says: Well, it’s your choice, either buy insurance or pay a — or pay a fee," Kagan said. "But that’s not the way the statute reads. And Congress, it must be supposed, you know, made a decision that that shouldn’t be the way the statute reads, that it should instead be a regulatory command and a penalty attached to that command."

Here is a link to the transcript è http://www.supremecourt.gov/oral_arguments/argument_transcripts/11-398-Monday.pdf

Here is a link to the audio recording è http://www.supremecourt.gov/oral_arguments/argument_audio_detail.aspx?argument=11-398-Monday

March 26 Transcript.pdf

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