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Supreme Court begins historic three days of arguments over health care law


Outside the Supreme Court, a cacophony of shouts, chants and jeers Monday brought home the raw emotion over the health care law, but inside, it was a day of relative calm and agreement.

The nine justices appeared to reject the argument that the case had to be put aside because of a 145-year-old law that says tax issues cannot be challenged until the tax goes into effect — 2015 in this case.

"What is the parade of horribles?" Justice Sonia Sotomayor asked a lawyer who had argued the case was premature under the Anti-Injunction Act of 1867 and would lead to a flood of cases sidestepping normal procedure under law.

But lawyers for the two main parties in the case — the Obama administration and the collection of states in opposition, including Florida — were on the same page, contending that the matter was too important not to take up and that the tax wasn't a tax but a "penalty."

"This case presents issues of great moment, and the Anti-Injunction Act does not bar the court's consideration of those issues," Solicitor General Donald Verrilli said.

"The purpose of this lawsuit is to challenge a requirement — a federal requirement to buy health insurance. That requirement itself is not a tax," concurred Gregory Katsas, who represents private parties challenging the law.

The justices — all of them spoke except Clarence Thomas — gave signs they were content to proceed.

"This is not a revenue-raising measure because, if it's successful, nobody will pay the penalty, and there will be no revenue to raise," said Justice Ruth Bader Ginsburg.

The harmony ends there.

Today is the main event, when the court will hear arguments on the so-called individual mandate, which requires Americans to carry health insurance or pay the penalty.

Opponents say it's a vast overreach; the government says Congress has the power to create the mandate and the ability to tax under the commerce clause. That conflict — whether or not to call a penalty a tax — underscores the delicacy and challenge of the government's case.

"Today you are arguing that the penalty is not a tax. Tomorrow you are going to be back, and you will be arguing that the penalty is a tax," Justice Samuel Alito told Verrilli. Verrilli argued the legal threshold in play Monday was different.

Florida Attorney General Pam Bondi sat in the courtroom scribbling down Alito's words and later said they were "very telling" about the direction of the case. "We all feel very positive," she said, surrounded by other state attorneys general, all Republicans.

The lack of tension inside the court Monday morning did not take away from the overarching drama or the historic nature of the proceedings. More than 400 people watched it live including 117 reporters and 120 members of the public. Another 34 seats were set aside for people who were ushered in for three to five minutes before a new group took their place.

Some had waited in line for days.

"I'm pumped up on a lot of caffeine," said Monica Haymond, 23, who lives in Washington and showed up at 7 p.m. Friday. She could have gotten in Monday but decided to wait until today, willing to spend another night on the concrete.

"My father passed away a year and a half ago from lung cancer, and one of the reasons why he wasn't able to catch it early on was he didn't have health insurance. His company didn't offer it," said Haymond, who was second in line for today's arguments.

Next to her sat Andrew Eiva, 63. He has also been sitting outside the court since Friday, but had no intention of going inside. Eiva is a paid placeholder. He was saving the spot for an out-of-town lawyer.

"There's been some hostility toward us," Eiva said, pointing to a row of other paid sitters extending past the court building. But he said the nasty words and occasional shower were worth the pay.

He declined to say how much he would be paid, only that "this is going to be a surge of money for me." Others said they were paid as much as $50 an hour. Behind Eiva's folding chair was a blanket, a tarp and a bag stuffed with Kashi granola bars, peanut butter and pita bread.

Even before the arguments began, a noisy but mostly respectful crowd had assembled outside, representing the passionate sides of the health care debate.

"The ACA, it serves us all," chanted dozens of people walking in a circle and referring to the law's formal name, the Affordable Care Act. A smaller group shouted, "The Constitution matters."

At the foot of the court steps, a line of people stood with red tape over their mouths that read "life." A man spread a Bible on the ground and knelt to pray.

"Lord, one branch has made a law and this branch now is evaluating that law. I just ask, God, that we give this branch, this Supreme Court, these nine justices, the wisdom to listen, to hear. We ask that those parts of this law that violate life, family, will be expunged."

A band played. People sang and marched.

"This law is not American," said Linda Door, 66, who flew in from Laguna Beach, Calif., and carried a sign contending a government-appointed panel would be able to "ration" care under the statute.

The 15-member Independent Payment Advisory Board created under the law would suggest ways to limit Medicare's spending growth, but it would not make decisions on individual cases and could be overruled by Congress. PolitiFact has rated the idea that the board would ration care "Pants on Fire."

John Feldman, 57, a proponent of the law, said misinformation was feeding public dislike of the law. "People don't understand it," he said.

A New York Times/CBS News poll released Monday showed 47 percent of Americans disapprove of the law.

Outside the court, the mood shifted to a political rally when Republican presidential candidate Rick Santorum showed up after Monday's arguments. He forced his way through a thick crowd of reporters and onlookers to launch an attack on rival Mitt Romney, who as governor of Massachusetts oversaw implementation of a law that served as a model for the federal law.

As Santorum spoke, demonstrators tried to drown him out with shouts of "health care is a right." Undeterred, Santorum kept on talking.

Alex Leary can be reached at Follow him on Twitter @learyreports.

Read the transcript of Monday's oral arguments and listen to audio at

Supreme Court begins historic three days of arguments over health care law 03/26/12 [Last modified: Tuesday, March 27, 2012 1:23am]
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