Stanford Law Prof Greely Blogging on Obamacare Oral Arguments Before the Supreme Court: Day One

Professor Hank Greely of Stanford Law School is blogging at the Law and Biosciences Blog on the oral arguments before the U.S. Supreme Court, Day One.

He is suggesting that the court will find that the Anti-Injunction Act will not apply, prohibiting as it does, cases on taxes to be brought to the courts before the tax has been assessed.

This issue should not be underestimated because the U.S. Supreme Court can not permit a situation where every time some political faction does not like a new law of Congress, they turn to the Supremes.

Now, it is clear that Obamacare is not a direct tax, but there is in our mind no question that the Affordable Health Care Act is a form of indirect taxation and passed as it was to spread the costs of health care more equitably and to make affordable health available for all.

Hence, after all is said or done, it is not guaranteed that the court will not rule this an indirect tax to which the Anti-Injunction Act applies.

The Court has to be careful that it is not put into direct confrontation with Congress, indeed, be put in a position of second-guessing Congressional legislation before the actual act of implementation. Simply put, you have to have a harm to allege a harm. You can not be theorizing about the future.

We agree with Greely that that the Anti-Injunction Act will be held not to apply because this is not a direct tax, but also agree that if the Court can not reach a sensible consensus on the merits, they will always have this option available as an escape hatch.

Even if the Court does not use this escape hatch, they should direct some strong words at all the people who are pushing this case for POLITICAL reasons rather than actually being concerned about the Act's Constitutionality, which has been raised merely as an excuse to challenge legislation that is not liked by one political extreme.

A Supreme Court acting as a political referee would be in deep trouble down the road.

Congress, for better or worse, makes the laws, not the Supremes.
Hence, the Supreme Court Justices can not play legislator here.