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In Health Case, 1st Question Is If It’s Too Soon for Challenge


The Supreme Court on Monday began three days of epic arguments over the 2010 health care overhaul law with a sort of appetizer — a 90-minute debate over whether the Court yet has the authority to hear the case.

Lawyers for both the Obama administration and challengers to the law took the same side on this question, arguing that the Court could hear the case now. The justices appeared receptive, suggesting that they will reject the argument made by an outside lawyer that it is too soon to rule.

That means they may be expected to issue a decision on the merits by the end of the court’s term in June, just as the presidential election heats up.

The threshold question stems from a 1867 law that holds that Americans cannot challenge a tax until it has been collected. The first penalties for violating the health care law’s individual mandate do not kick in until 2014, and they must be paid on federal tax returns in April 2015.

“This case presents issues of great moment,” said Solicitor General Donald B. Verrilli Jr., adding that the law, the Anti-Injunction Act, “does not bar this court’s consideration of the case.”

The case’s main event — arguments over the constitutionality of the law’s requirement that most Americans obtain insurance or pay a penalty — will not come until Tuesday. On Monday, the justices considered the Anti-Injunction Act, which says that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person.” In other words, people who object to taxes must pay first and litigate later.

That is so, said Justice Stephen G. Breyer, because “taxes are, for better or worse, the life’s blood of the government.”

The first penalties for violating the health care law’s individual mandate do not kick in until 2014, and they must be paid on federal tax returns in April 2015. That means, as the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., ruled last year, that courts are for now powerless to decide the law’s constitutionality.

The Obama administration pressed this argument in trial courts but abandoned it on appeal. The challengers to the law have always said the 1867 law poses no obstacle to immediate review.

In the Supreme Court, the administration suggested that the justices appoint an outside lawyer to argue that the 1867 law bars the challenges. The justices asked Robert A. Long to do so, and he went first on Monday.

“I would not argue that this statute is a perfect model of clarity,” Mr. Long said.

He was followed by Solicitor General Donald B. Verrilli Jr., arguing for the Obama administration, and Gregory G. Katsas, who represents the private parties challenging the law.

Mr. Long said the 1867 law was “jurisdictional,” meaning it forbids courts from hearing suits even if, as here, neither side objects.

In the health care law, Congress called the required payment a penalty rather than a tax. But the penalty is contained in the Internal Revenue Code, and the health care law says it is to be “assessed and collected in the same manner” as a tax.

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