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the national interest

Supreme Court Likely to Go for It, Not Punt

WASHINGTON, DC - MARCH 26:  Demonstrators for and against the Patient Protection and Affordable Care Act march and chant in outside the U.S. Supreme Court Building on March 26, 2012 in Washington, DC. Today the high court, which has set aside six hours over three days, will hear arguments over the constitutionality of the act.  (Photo by Chip Somodevilla/Getty Images) Everybody agrees: Make up your mind!

The question of the day before the Supreme Court is the least interesting one: do we even need to have this argument now? The Anti-Injunction Act of 1867 says a person can't challenge a tax until he's had to pay it. If the penalty enforcing the individual mandate is a tax, then nobody has standing to challenge the individual mandate until 2015, when it goes into effect.

But reports from the morning's arguments suggest the justices all seem likely to go ahead and rule this term:

The comments and questions of the Justices during the 89-minute exchange left the distinct impression that they are prepared to rule on the constitutionality of the mandate that individuals must buy health insurance, and not push the issue off into the future.

Two liberal justices sounded skeptical that the mandate is a tax:

"This cannot be a revenue-raising measure, because if it's successful, there won't be any revenue raised," said Justice Ruth Bader Ginsburg of the mandate.

Another liberal on the court, Justice Stephen Breyer, said of Congress's description of the fine for non-compliance with the mandate, "They called it a penalty and not a tax for a reason."

Both sides of the case actually want the Court to rule this year, and not 2015.

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Photo: Chip Somodevilla/2012 Getty Images