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Sahil Kapur

Sahil Kapur is TPM's senior congressional reporter and Supreme Court correspondent. His articles have been published in the Huffington Post, The Guardian and The New Republic. Email him at sahil@talkingpointsmemo.com and follow him on Twitter at @sahilkapur.

Articles by Sahil

On the first day of health care reform arguments before the Supreme Court, two justices needled a top Obama lawyer for simultaneously calling the fine that will be paid under the law for not purchasing insurance a "penalty" and a "tax."

The confusion arises because of the administration's argument that the power to enforce the individual mandate is rooted in Congress' taxing power -- but that the mechanism itself is designed to be a penalty, not a revenue-generating policy.

The narrow but important distinction created a communication challenge for the lawyer representing the Obama administration.

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The Supreme Court kicked off oral arguments over President Obama's health care law Monday by dedicating 90 minutes to the one issue on which the White House and the Republican challengers agree: The justices should hand down a speedy ruling on the constitutionality of the law this summer, rather than punt it to 2015 or beyond.

Lawyers for the Obama Justice Department and for the 26 Republican-led states challenging the law agreed that an old statute called the Anti-Injunction Act -- which forbids people from challenging taxes in court unless they've already been assessed by the government -- does not apply in this case. The Supreme Court enlisted outside counsel to make the opposite case.

The justices appeared broadly skeptical that the law's fine imposed on Americans who fail to carry health insurance qualifies as a "tax."

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Senate Majority Leader Harry Reid tells TPM he did not watch the Supreme Court health care arguments.

"No," said the Nevada Democrat, when asked Monday afternoon in the Capitol if he caught the morning's hearing. "We have lots of work to do here, and I think it would be a distraction."

The Senate leader added he's confident the court will uphold the mandate, which will enjoy 2 hours of arguments Tuesday morning.

Emerging from the chamber after sitting in on the first day of Supreme Court health care arguments, Sen. Richard Blumenthal (D-CT) told TPM that he believes the justices won't punt the case and will uphold President Obama's health reform law by this summer.

"I think they're going to decide the case and uphold the Affordable Care Act," the senator said in an interview. "I think the court clearly seems to be looking through legal labels to the common sense importance and impact of the case, and its effect on Americans in preventing insurance abuses."

TPM reported that the justices seemed convinced that they have standing to rule. Blumenthal agreed, pointing specifically to Justice Antonin Scalia's comment that it's unclear why the court is "deprived of jurisdiction."

"The importance of Justice Scalia's point that if it's not clearly jurisdictional, it doesn't have private court jurisdiction, and this statute is not a model of clarity [on the penalty-tax issue]," Blumenthal said. "That exchange, I think, was very important."

The Supreme Court begins hearing arguments Monday morning on President Obama's health care reform law, a case with sweeping political and policy implications grand enough to make it one of the most important in years.

At stake: the future of this country's badly ailing health care system and perhaps even the legacy of its first black president. The political ramifications of the ruling will be enormous, with one of the two major political parties poised to see its vision for the future of government suffer a body blow.

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Appearing on two Sunday talk shows, the GOP's top budget guru Rep. Paul Ryan promised to close enough loopholes to pay for the large tax cuts in his budget blueprint unveiled last week -- but he repeatedly refused to specify any.

"We're proposing to keep revenues where they are, but to clear up all the special interest loopholes, which are uniquely enjoyed by higher income earners, in exchange for lower rates for everyone," Ryan said on CBS' Face The Nation. "We're saying get rid of the tax shelters, the interest group loopholes and lower everybody's tax rates."

The plan does not point to any such tax loopholes, nor is it expected to become law. But the House Budget Chairman's suggested it isn't his job to specify which ones. His message boils down to this: Trust us, we'll get to it.

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The prominent conservative columnist George Will argued Sunday that the health care reform law's individual mandate is an egregious abuse of federal power. Soon after, he suggested the legal challenge would be moot if it were only called a "tax" as opposed to a "penalty."

Will's exchange on ABC's This Week with George Stephanopoulos:

STEPHANOPOULOS:  ... interview I had with President Obama two years ago, where we had a big fight over whether or not this is a tax. 

WILL:  If they lose up there, he will have lost it on this program talking to you.  If they -- if they had simply said this is a tax, under the taxing power, we wouldn't be having this argument.

STEPHANOPOULOS:  But whether they say it or not, it is a tax.  And that means -- that undercuts the mandate argument. 

WILL:  It is collected -- it is collected by the IRS, the penalty is, but the president sat on our set, talking to you, saying I categorically reject the idea that this is a tax.

In separate articles that have garnered lots of attention recently, Supreme Court watchers Linda Greenhouse and Dahlia Lithwick make the case that the health care reform law's requirement that Americans purchase insurance easily passes constitutional muster.

In the New York Times, Greenhouse writes that the mandate comfortably falls within Congress's authority to regulate interstate commerce:

So I want to unpack the challengers’ Commerce Clause argument for what it is: just words.

Basically just one word, in fact: “unprecedented.” ...

The government argues that, to the contrary, the “uncompensated consumption of health care” by those who are willfully or helplessly uninsured is itself an enormous economic activity. The uninsured don’t exist apart from commerce. To the contrary, their medical care results in some $43 billion of uncovered health care costs annually and, through cost-shifting, adds $1,000 a year to the average cost of a family insurance policy. People who don’t want to buy broccoli or a new car can eat brussels sprouts or take the bus, but those without health insurance are in commerce whether they like it or not.

At Slate, Lithwick opines that the case is not even a close call on the merits:

So let’s start by setting forth two uncontroversial propositions.  The first proposition is that the health care law is constitutional. The second is that the court could strike it down anyway. ...

The law is a completely valid exercise of Congress’ Commerce Clause power, and all the conservative longing for the good old days of the pre-New Deal courts won’t put us back in those days as if by magic. Nor does it amount to much of an argument. ...

What matters is whether the five conservative justices are so intent in striking down Obama’s healthcare law that they would risk a chilly and divisive 5-4 dip back into the waters of Bush v. Gore and Citizens United.

Lithwick makes this prediction:

[The justices] will hear six hours of argument next week. They will pretend it is a fair fight with equally compelling arguments on each side. They will even reach out and debate the merits of the Medicaid expansion, although not a single court saw fit to question it. And then the justices will vote 6-3 or 7-2 to uphold the mandate, with the chief justice joining the majority so he can write a careful opinion that cabins the authority of the Congress to do anything more than regulate the health-insurance market. No mandatory gym memberships or forced broccoli consumption.

 

Freshman Rep. Allen West (R-FL), an outspoken conservative, penned an op-ed Friday in the Washington Times explaining why he thinks the health care reform law's individual mandate is unconstitutional.

The crux of his argument:

The 2012 Supreme Court must determine whether the Founders had any intention of mandating the behavior of private enterprises and individuals.

To me, the answer is obvious: absolutely not.

The op-ed echoes the commonly made conservative arguments against the law's requirement that Americans purchase insurance.

Rep. Michele Bachmann (R-MN) said Sunday that she will be sitting in the Supreme Court chamber to monitor the oral arguments on the health care reform law's constitutionality this coming week.

"It's been talked about all this last week," she said on ABC's This Week. "And I have a ticket. I will be in the Supreme Court chamber to hear these oral arguments live."

Bachmann added: "I was the chief author of the bill to repeal Obamacare, the first member of Congress to do so."

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