It is day one in the almost unprecedented three days of Supreme Court oral arguments regarding the Affordable Care Act.  The first thing on the Court’s agenda is whether or not they can even rule on the case yet. The Court decided to devote 90 minutes of oral arguments today to deal only with that one matter.

At the heart of the issue today is the Tax Anti-Injunction Act enacted in 1867. The act has traditionally been interrupted to mean that a person cannot challenge, and thus the Court can’t rule on the constitutionality of a tax until it has actually been imposed on someone who then files suit. If the Court decides the individual mandate penalty is actually a tax subject to that Act, then the Court arguably cannot decide the case until after 2014, the earliest some penalty/tax could apply.

The imposition of a new “tax” is usually unpopular, so Congressional Democrats always claimed the mandate was a “penalty” and not a “tax.” But this monetary “penalty” would be collected by the IRS in conjunction with individual income tax returns. This clearly sounds like a case of something walking like a duck and quacking like a duck. This is why justices in the lower courts have been divided on whether or not the Tax Anti-Injunction Act should apply. For example the Fourth Circuit ruled that the Anti-Injunction Act applied to attempts to challenge the individual mandate, so any suit now was premature.  Other circuits disagreed.

Neither the Obama administration, those challenging the law, nor basically the entire media/political world want the Supreme Court to invoke Tax Anti-Injuction Act in this case — for various reasons, they prefer to see the substantive merits argued and decided, which is why the Court appointed separate counsel to argue the tax position — but there is good reason for the Court to duck for now. To begin with, from a common sense perspective the individual mandate penalty is in essence a tax. It should be treated like a tax and the Court should act accordingly. If Congress can pass taxes but have them legally not treated as taxes by simply declaring “these are not taxes,” that could have some long term ramifications.

More importantly the Supreme Court punting will give time for the political process and the other two branches to run their course. There is at least a some probability Republicans will win big this November. If they do, they have promised to repeal the law, rendering this whole case moot, though it’s doubtful the Court would openly speculate on that.

When possible, the Court should let the political process work itself out before stepping into the fray that need not be decided now. A Supreme Court that chooses to get directly involved, when it may not need to, is one that is really pushing the boundaries of its powers. One could even say it would be a sign of an “activist court” that Conservatives have been railing against up until this case.