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Faith & Justice

The first day of oral arguments before the high court concerning the constitutionality of ObamaCare focused on whether the 1867 Anti-Injunction Act (AIA) applies to this case. The AIA bars claimants from asking for a refund on a tax until that tax has been collected and paid. If the high court concludes the AIA applies to ObamaCare, it would force the Justices to punt on ObamaCare for now, putting off a decision on the health care law for a number of years.

Predicting what the high court will determine is never easy. But based on questioning from the Justices in court today, I don’t think that’s likely to happen. It was very clear that Justices on both sides of ObamaCare expressed doubt that the AIA applies – a  move that would clear the way for the constitutional challenge to ObamaCare’s key provision, the individual mandate, to move forward now, not later.

As I told Megyn Kelly on FOX News today, it was a bit puzzling that the high court spent 90 minutes on oral arguments on this issue about whether they can even proceed with the ObamaCare challenge, but I am optimistic that the high court will reach the merits.

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The complete audio of the oral arguments and a transcript are posted here.

Coming up tomorrow: the main event – the individual mandate – and whether Congress overstepped its authority when it put in place a mandate that compels Americans to purchase pro-abortion health care, or face financial penalties.

As I told Megyn Kelly, I don’t think we got a sense from the questioning today about how the Justices view the individual mandate. Having argued more than a dozen cases before the high court, I can tell you from personal experience, it’s never easy to read the tea leaves and determine the outcome of a case based on oral arguments. But one thing is clear to me: this will be a very close case.

And I do remain hopeful that the Justices will not only get to the heart of the matter, but ultimately determine that ObamaCare – including the individual mandate – is the wrong prescription for America’s health care system, and is unconstitutional as well.

Join me for Day 2 analysis tomorrow on our radio broadcast and at 2:30pm eastern on FOX News with Megyn Kelly.

Jay Sekulow

 

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