The Supreme Court is scheduled to hear arguments on the challenge to the Affordable Care Act next month, with an expected ruling during the summer. But an old law, the Anti-Injunction Act, could mean that the ruling is delayed until at least 2014. The Act prohibits courts from halting a tax that isn't yet in effect, and since the
ACA doesn't go into effect until 2014, neither does the tax penalty for those who don't buy insurance under the mandate.
On the first day of their historic session March 26-28, the justices will consider that policy and address whether people who challenge the insurance requirement must first pay the disputed tax and seek a refund before bringing a lawsuit. If the answer is yes, the legal fight over a key part of the law could be delayed, possibly until 2015.
None of the main parties to the litigation is arguing for that option, which would prolong confusion over the law's constitutionality. Yet the high court could find that the law demands it. Further, the nine justices are deeply divided ideologically, and the option might be a way to avoid deepening the fault lines and edge the court out of the spotlight this election year. [...]
It is difficult to predict how the justices would respond to the claim that the legality of the mandate requirement must be put off. They have taken the question seriously enough, however, to appoint a special lawyer to argue March 26 that the case must wait until someone seeks a refund.
Both Obama administration and the challengers argue that the payment under the provision is a "penalty," rather than a tax, and thus not subject to the Anti-Injunction Act. The Court obviously isn't convinced by that argument, or is doing due diligence, and have thus appointed a lawyer to make that argument.
Taking the issue off the table in this presidential election year would have ramifications for the law and how it is implemented. Many of the states which are party to the challenge are waiting for the outcome of the suit to work on implementation of the law's provisions. In some provisions, it won't make a huge difference. For example, if states don't establish their own exchanges, the law stipulates that the federal government establishes the exchange. But other provisions require planning and coordination between the states and the federal government, coordination that some states have balked at with the pending law suit.