For a while now, the expectation was that, after all the appellate rulings on the Affordable Care Act, the Supreme Court would hear the case sometime in March 2012 and deliver an opinion in June. That’s the stated preference of the Justice Department, and I imagine it to be the desired preference of the plaintiffs in the case. Everyone has an incentive to wrap this up quickly, to determine the path forward with the law either found constitutional or not.

However, an obscure tax law might give the Supreme Court a way out.

Some of the healthcare law’s victories in lower courts were procedural rulings — cases where courts decided, for one reason or another, that a particular lawsuit couldn’t go forward. The states, NFIB and the federal government all agree that they don’t want that kind of outcome from the Supreme Court. But there are still procedural issues the justices will have to deal with.

First, the Supreme Court will have to decide whether it’s able to hear the case at all. Part of the administration’s defense of the mandate rests on the idea that the penalty for not buying insurance is a tax, rather than a regulatory fine. But a federal law known as the Anti-Injunction Act prevents courts from blocking taxes before they take effect.

Because the administration wants a ruling on the merits, it argues that the Anti-Injunction Act doesn’t apply here — the court shouldn’t think of the mandate penalty as a tax while deciding whether it can take the case now. Then, however, on the merits, the Justice Department argues that the penalty is a tax.

The two arguments are “transparently contradictory,” said Tim Jost, a law professor at Washington and Lee University, who supports the healthcare law.

“They can’t have it both ways,” he said.

Indeed, and it could become a major problem. If the DoJ’s argument hinges on the individual mandate as a tax, then the justices could very easily say that the paintiffs don’t have standing until 2014, when the tax gets implemented. That would create additional uncertainty for over two years before standing can be given on the lawsuit. Obviously, this hasn’t stopped some judges at the district and appellate level from ruling on the merits of the case. But SCOTUS may not want to insert themselves into a highly charged political case in the middle of a Presidential election. Besides, the whole thing could work itself out if a Republican wins the election, and DoJ drops their objections to the case and abides by the appellate ruling (the rulings are contradictory, of course, so that would generate more lawsuits, I would imagine).

The point is that if the Supremes want to find a reason not to hear the case at this time, they have that opportunity. Which means that we may not actually see a ruling on the health care law by next year.

David Dayen

David Dayen

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