"When the Supreme Court convenes next week to hear arguments about the constitutionality of President Obama’s health care law, the first issue they will consider is the basic character of one of the law’s crucial features: the requirement that uninsured Americans either purchase coverage or pay a fine to the federal government.
Better known as the individual mandate, it’s the provision of the health care law at the heart of the GOP’s constitutional complaint. The plaintiffs — the 26 states suing over the law — contend the individual mandate exceeds Congress’ power to regulate interstate commerce, and the court’s ruling on that issue could have the most sweeping legal impact, perhaps upending decades of Commerce Clause jurisprudence.
But before they get to the question of whether the individual mandate is an unconstitutional expansion of the Commerce Clause, the justices have agreed to consider whether they even have the power to take up this case, since the mandate does not go into effect for another two years. And that decision will ride on a fine distinction: Is the individual mandate a tax or is it a penalty?
The arguments they will hear, and the decision they ultimately reach, will determine whether the court can proceed to rule on the merits of the law, or whether they must punt on the substance until after the mandate takes effect in 2014. Either decision would place several key actors in awkward political predicaments without any easy escape routes.
http://tpmdc.talkingpointsmemo.com/2012/03/whats-in-a-mandate-why-the-supreme-court-may-take-a-pass-on-obamcare.php?ref=fpb
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