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. Mr. Verrilli walked a fine line. He has told the court that the administration wants a prompt ruling on the health care law and that the 1867 law should not stand in the way. Yet the administration does not want to damage its ability to rely on the 1867 law in other cases. There were other complications. Mr. Verrilli’s argument that the penalty is not a tax for purposes of the 1867 law was in potential tension with one he will make on Tuesday, that the mandate was authorized not only by Congress’s power under the commerce clause but also by its power to levy taxes. “Today you are arguing that the penalty is not a tax,” Justice Samuel A. Alito Jr. said. “Tomorrow you will be back and arguing that the penalty is a tax.” Mr. Verrilli argued that the name Congress gave to the payment required for violating the mandate in the health care law — calling it a penalty, not a tax — mattered for purposes of the 1867 law but was irrelevant in connection with the constitutional taxing power. The challengers to the law, represented by Mr. Katsas, agreed with Mr. Verrilli that the court might decide the case on the merits now. Mr. Katsas said the penalty for failing to obtain insurance was not the sort of tax the 1867 law concerns. Mr. Katsas also said the challenge was in any event to the mandate, which applies to virtually every American, rather than to the penalty, which applies to a smaller group. Chief Justice John G. Roberts Jr. said that was a distinction without a difference. “It seems very artificial to separate the punishment from the crime,” he said. In a brief filed with the court, the states challenging the health care law press a further argument. They say that the 1867 law does not apply to them even if it applies to the private challengers. An oddity of the case, United States Department of Health and Human Services v. Florida, No. 11-398, is that a ruling from the Supreme Court that it lacks jurisdiction could be easily reversed by Congress, which is free at any time to amend the 1867 law. The prospect of having to rehear the case in short order may not be attractive to the justices.
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