High court to take up legality of mandate

The battle that began three years ago over reshaping health care in the United States hits a high point today when the Supreme Court hears arguments about the individual mandate.

“No clues were given out” by the justices on Monday, the first of three days of arguments over the Patient Protection and Affordable Care Act, Colorado Attorney General John Suthers said.

Suthers sits on the six-member executive committee appointed by the 26 states that filed suit against the Obama administration and he is to be in the court today as the arguments are delivered.

In arguments Monday, both sides argued that the law’s penalties for failure to purchase insurance are not the same as a tax.

Under an 1867 law, the government couldn’t be sued over a tax until it had been paid. If the court agrees that penalties are a tax, it could decide the case is unripe for a decision.

“I saw no appetite on the part of the court to take that way out,” Suthers said.

The Obama administration is “close to leaving a powerful argument off the table by resisting calling the penalty a tax,” University of Colorado law Professor Scott Moss said.

Had the White House agreed the penalties constituted taxation, the whole case could have been put off until 2015, well into the next presidency, Moss said.

Justice Samuel Alito appeared skeptical that the Obama administration wouldn’t change its argument overnight, commenting that after contending on Monday that the penalty is not a tax, it can’t reverse course and today suggest it is, Suthers said.

The Supreme Court building was surrounded by “a couple thousand people from all kinds of interest groups” who were protesting or rallying support for the law.

One notable arrival was former Pennsylvania Sen. Rick Santorum, who interrupted his bid for the Republican nomination for president to show up, family in tow, at the high court, Suthers said.

Santorum’s children all had Etch-A-Sketches, Suthers said.

Santorum has ridiculed a claim by a spokesman for Republican frontrunner Mitt Romney that the campaign begins anew, like turning over an Etch-A-Sketch to reveal a blank slate, when the general-election campaign begins.

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