This morning the United States Supreme Court granted the various Petitions for Writ of Certiorari filed by the parties in what has become known as the “Florida case”. In plain English, that means that the Court will hear oral arguments in each of the cases. You can find the link to the Order here at page 3.
Of interest, in Case No. 11-398 (HHS v. Florida), the Court directed that the parties brief the question of whether the penalty for failure to purchase insurance is really a “tax”, and thus no suit can be brought to challenge it until the tax has to be paid. This was the “Anti-Injunction Act” issue relied upon by the dissenting judge in the recent opinion issued by the Circuit Court of Appeals for the District of Columbia who found that it was too early to bring any action against the law.
The reason this is interesting, at least to me, is that before passage of Obamacare we were assured by everyone from the President on down that the penalty for failure to have government approved insurance was, in no uncertain terms, not a tax.
Then, when the various challenges to Obamacare were filed, the government defended the claims by arguing that the penalty was, in fact a tax. However, as the cases advanced through the courts, the government suddenly abandoned the tax argument. And, in its petition for Writ of Certiorari in HHS v. Florida, the government didn’t even raise the issue.
The Supreme Court has also agreed to hear the severability issue raised by the various states and the National Federation of Independent Business (Case Nos. 11-393 and 11-400). The question here is whether all of Obamacare must be thrown out if the individual mandate is deemed unconstitutional. So far, in all of the cases decided by the courts, only Federal District Court Judge Roger Vinson of the Northern District of Florida found the entire law to be unconstitutional.
The parties will now file the requisite briefs, and, once that is done, the oral arguments will be scheduled.