Will Supreme Court weigh health mandate at all?

The Supreme Court’s opening day of arguments on the healthcare law will not focus on whether the Affordable Care Act is constitutional. Instead, the justices will consider whether the legal challenge to it has arrived too soon.

The problem is the Anti-Injunction Act, which dates to 1867. It says, “No suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person.”

How does this figure in the healthcare case?

It could block a suit against this key part of the healthcare law if it imposes a tax. The law seems to say that no one can sue over a tax provision until he or she has paid the tax.

How is the Affordable Care Act a tax law?

During the debate over it, President Obama insisted it did not impose new taxes. However, people who do not have minimum health coverage in 2014 will be assessed a “penalty” to be paid on their tax return, which will be due in April 2015.

Who asserted the court should postpone a decision until the first taxpayer has paid a penalty and then sued for a refund?

Surprisingly, no one did. The Republican challengers and the Obama administration agreed on this issue. They said the healthcare law was not a tax law, and they said it was important that the courts rule now on the constitutionality of its provisions. Federal and state health officials need to know whether they should or should not plan to implement the complex new law.

Why then is the issue before the Supreme Court?

Because the justices believe they may not rule on an issue if the law says they should not.

Is the high court likely to rule the suits are premature?

It is quite possible. Chief Justice John G. Roberts Jr. has been wary of the court’s ruling too soon on broad questions. And Judge Brett Kavanaugh of the U.S. Court of Appeals in Washington, a friend of Roberts’ and former clerk to Justice Anthony M. Kennedy, wrote an opinion in November saying the court would be wise to put off a decision.

What would happen if the court decides the Anti-Injunction Act prevents a ruling now on the individual mandate?

The justices will meet behind closed doors Friday to discuss the entire case and cast their votes. If five or more believe the new law imposes a tax, they will write an opinion to explain their decision. The constitutionality of the individual mandate would remain unsolved. However, the justices would still be free to rule on the states’ rights challenge to the Medicaid expansion, the issue to be debated Wednesday.

david.savage@latimes.com