TIGTA, or the Treasury Inspector General for Tax Administration, has a special position in the Treasury Department—it audits the IRS. Basically, it’s the IRS of the IRS.

The fallout from the leaked TIGTA report has been swift and sudden, with conservative groups demanding a congressional investigation. On Monday, President Barack Obama said if the allegations were true, they were “outrageous” and the people involved would be “held fully accountable.”

Reuters and other news outlets obtained parts of the report over the weekend. It will be released publicly and in full this week.

On Friday, Lois Lerner, the director of exempt organizations for the IRS, acknowledged the “inappropriate” targeting of some groups by the IRS for closer scrutiny on their nonprofit applications.

Lerner said the behavior was limited to a Cincinnati branch office and that no applications that were targeted for closer inspection were denied.

The language in the draft said that groups that were also targeted included those with mission statements such as advancing  “political action type organizations involved in limiting or expanding government, educating on the Constitution and Bill Of Rights, [and] social economic reform/movement[s].”

TIGTA functions as a watchdog group whose mission is to “provide integrated audit, investigative, and inspection and evaluation services that promote economy, efficiency, and integrity in the administration of the Internal Revenue laws.”

Among its goals are protecting the safety of IRS employees; determining fraud, waste, and abuse at the IRS; and informing the people, Congress, and the Treasury secretary about problems at the IRS.

The idea of an IRS watchdog didn’t originate with the Founding Fathers or even the early version of the IRS that dates back to the Civil War era.

TIGTA was established in January 1999 as part of the Internal Revenue Service Restructuring and Reform Act of 1998 to provide independent oversight of IRS activities.

It assumed most responsibilities held by the IRS’s former Inspection Service, which was established in 1952 as part of the creation of the modern Internal Revenue Service under the direction of President Harry Truman.

Prior to that, the IRS was run using a patronage system, and the reorganization in 1952 put career professionals in charge of the service.

Under its current mandate, TIGTA has broad powers to make sure the $2 trillion (yes, that’s trillion with a T) handled by the IRS is accounted for.

Related Link: All about TIGTA

In addition to its power to audit the IRS, TIGTA has the power to conduct investigations. Once a problem is identified by its Office of Investigations, a special agent will investigate claims, and if warranted will refer them to the Justice Department or local authorities for prosecution.

All investigations concerning IRS employees are referred to IRS management for administrative action if misconduct is found.

TIGTA is part of the Treasury Department, but it also testifies before Congress on certain matters.

J. Russell George is the current Treasury Inspector General for Tax Administration. He was nominated to the post in 2004 by President George W. Bush and approved by the U.S. Senate.

House Oversight and Government Reform Committee Chairman Darrell Issa was among those who requested a TIGTA report after allegations that some nonprofits were seeing application approval delays.

Scott Bomboy is the editor-in-chief of the National Constitution Center.

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On one side of the battle is a group that includes a majority of U.S. senators, President Barack Obama, Internet retailer Amazon. Walmart, a group representing national retailers, and a cadre of state governors (including New Jersey’s Chris Christie).

The other side includes digital giants eBay, Facebook, Yahoo, and Expedia; tax fighter Grover Norquist; the Heritage Foundation; direct marketing interests; and conservative House Republicans.

And the Commerce Clause, which played a key role in the Supreme Court’s health care decision, could make a cameo appearance at the end of the fight.

At stake is an estimated $23 billion a year in local and state sales taxes that, in theory, could be collected if consumers in 45 states and the District of Columbia were required to pay sales taxes for online purchases.

On Monday, the White House said President Obama supports the Marketplace Fairness Act. The law proposed by Mike Enzi (R-Wyoming) would let states collect sales taxes from residents who buy online from out-of-state retailers. The retailers would collect the tax at the point of purchase, and remit the taxes to the eligible states and local municipalities.

So for example, if you live in Illinois and buy a pair of sneakers on eBay, you would pay a direct sales tax for your state (6.25 percent) and if applicable, your city (as much as 3 percent).

Currently, some states have similar agreements with retailers like Amazon. Others require people to report an annual use tax to estimate how much they spend online each year. The problem is that compliance is low on reporting the use tax. The new law shifts the role of tax collector from the state to the retailer.

The Senate is expected to pass the bill as soon as this week, with greater support than it gave gun-control measures last week.

But will it pass the House, where the measure could be seen as a tax hike?

That answer is uncertain. Some House Republicans might have problems with any law that suggests a tax hike, even though the act’s supporters claim they just want to see the proper amount of taxes collected.

There is an exemption for small businesses that earn less than $1 million annually from out-of-state sales.

John Donahoe, the CEO of eBay, wants the exemption raised to $10 million in annual sales for small businesses or companies with fewer than 50 employees.

“I am writing to ask for your help in telling Congress ‘No!’ to new sales taxes and burdens for small businesses,” Donahoe said in an email to eBay customers on Monday. “We believe this is a reasonable exemption to protect small online businesses.”

The issue of who decides the Internet sales tax question goes back to 1992, when the Supreme Court put the ball in the lap of Congress in a ruling that predated the modern commercial Internet.

During the past 20 years, many online businesses have cited that 1992 Supreme Court ruling, Quill Corp. v. Heitkamp, as proof that online retailers don’t have to charge—and collect—sales taxes in states where they don’t have a physical business.

Quill was an out-of-state mail-order house that sold products without having a store or sales staff in North Dakota.

The Supreme Court found that states had a right under the Due Process Clause of the Constitution to collect sales taxes, but the burden placed on out-of-state businesses to collect the taxes ran afoul of the Commerce Clause.

“The State’s enforcement of the use tax against Quill places an unconstitutional burden on interstate commerce,” said Justice John Paul Stevens.

The court then said that the “underlying issue here is one that Congress may be better qualified to resolve, and one that it has the ultimate power to resolve.”

The key issue is how effectively a computerized system can be established to collect taxes not only from 45 states and the District of Columbia, but also additional local sales taxes, and get the revenue in the hands of the correct people, without imposing a huge cost or burden on small businesses.

Supporters of efforts such as the Streamlined Sales and Use Tax Agreement, which has been adopted by 24 states, say it’s an issue of fairness, in addition to states losing out on tax revenue.

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House Judiciary Committee Chairman Bob Goodlatte (R-Virginia) will be one key player in getting the law passed after its likely approval in the Senate.

“While it attempts to make tax collection simpler, it still has a long way to go,” Goodlatte said. “There is still not uniformity on definitions and tax rates, so businesses would still be forced to wade through potentially hundreds of tax rates and a host of different tax codes and definitions.”

Goodlatte and others have concerns about the potential reach of such a law. The Securities Industry and Financial Markets Association, in particular, says the bill could set a precedent that would allow states to collect taxes on other out-of-state activities.

In the end, it could be the ease of use (and power) of a software system that could get the Marketplace Fairness Act past the Commerce Clause concerns in the 1992 court ruling.

That system would need to account for about 9,600 local taxes, in addition to 45 states and the District of Columbia, without imposing a burden on retailers.

The Congressional Research Service analyzed the issue earlier this month as part of a report for Congress.

It says the under the precedent set by Quill, a connection, or nexus, must be established that shows that “(1) the state has provided some benefit for which it may ask something in return and (2) the seller has fair warning that its activities may be subject to the state’s jurisdiction.”

In addition to this connection, “the Commerce Clause prohibits state laws that discriminate against interstate commerce,” the CRS says. That includes the concept that “a state law that subject[s] remote sellers to tax-related burdens not imposed on in-state sellers would appear to be facially discriminatory and, therefore, subject to a high level of judicial scrutiny.”

Scott Bomboy is the editor-in-chief of the National Constitution Center.

The IRS building in the early days of the income tax.

Hopefully, we can answer these and other questions, even though the importance of April 15 has faded somewhat with the popularity of electronic tax filings and automatic deadline extensions.

Question 1: How did the Internal Revenue Service come about?

The IRS has its roots in the Civil War, when a revenue bureau was set up to collect taxes levied to support the war effort in the North. That tax expired in 1872, but the Commissioner of Internal Revenue and its successor have remained in business since.

Question 2: Was there really a national income tax before the one we have now?

Aside from the Civil War tax on the Union states, Congress passed a national income tax in 1894, which was ruled unconstitutional the following year by the U.S. Supreme Court in Pollock v. Farmers’ Loan & Trust Company. The court said it was a direct tax not apportioned according to the population of each state, in violation of Article I, Section 9, of the Constitution.

Question 3: If the Supreme Court said the income tax was unconstitutional, why do we have it now?

Quite simply, enough states changed the Constitution to allow it. After the Pollock decision, two forces joined together to get Congress and at least 36 states to make the income tax legal via the 16th Amendment. Populists thought more people, especially those with higher incomes, should pay taxes. People who supported Prohibition realized the income tax was needed to replace lost taxes on alcohol sales.

Question 4: Which state can we “blame” for passing the 16th Amendment?

Delaware was the 36th state to ratify the 16th Amendment in 1913. But it would be harsh to blame Delaware, since six other states ratified the amendment after it did. And some people believe the income tax is a good thing, and maybe they would honor Delaware!

Question 5: So why is April 15 the big Tax Day?

Tax Day hasn’t always been on April 15. The first Tax Day was on March 1, which was a little over a year after the 16th Amendment was ratified. Just before Prohibition started, Tax Day was moved to the Ides of March, aka March 15. In 1955, the deadline was pushed back to April 15, so the IRS could spread out the work involved with processing all the forms. The date of Tax Day changes if it is on a weekend or conflicts with a holiday in the District of Columbia.

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Question 6: How long was the first tax form?

It was four pages long, including instructions. Check out what the first 1040 form ever looked like here (PDF). At the time, the average annual income was $800.

Question 7: Is it really that hard to do your own taxes?

It depends on your skill level, but the income tax seems to have befuddled Albert Einstein. According to a website called The Quote Investigator, there may be some truth to a quote allegedly uttered by Einstein: “The hardest thing in the world to understand is income taxes.” The site tracked down the saying to Einstein’s personal accountant.

Question 8: Who has the biggest income tax bill?

ExxonMobil pays the highest, at about $30 billion a year in corporate income tax, followed by Chevron and Apple.

Question 9: What was the highest tax rate ever?

During World War II, the highest tax bracket was taxed at 91 percent and the lowest tax bracket was 23 percent.

Question 10: Who exactly is the “taxman”?

The current “taxman” is Steven T. Miller, the Acting Commissioner of Internal Revenue and Deputy Commissioner for Services and Enforcement. He replaced Douglas H. Shulman, who resigned late last year. As for the man that inspired the Beatles song written by George Harrison, that would be then-Prime Minister Harold Wilson and his governments 95-percent tax bracket that affected the Beatles.

Photo via John Morgan/Flickr

Today we celebrate a constitutional ratification twofer: the 15th Amendment (ratified February 3, 1870) and the 16th Amendment (ratified February 3, 1913). Here’s what you need to know.

The 15th Amendment

What it does:

It prohibits the state or federal government from using race as a voting qualification.

Why it was added:

The 15th Amendment was one of the “Reconstruction amendments,” and was an important step in ensuring African Americans’ right to vote. Unfortunately, change didn’t happen overnight, and it would take further measures, such as the 24th Amendment, which nixed the use of poll taxes, to foster true equality.

Word-For-Word:

Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

The 16th Amendment

What it does:

It allows Congress to levy an income tax.

Why it was added:

An 1895 Supreme Court decision had ruled that an income tax law was unconstitutional because it violated the provisions in Article 1 of the Constitution requiring that direct taxes be apportioned according to state population. A constitutional amendment was the only way to make an income tax happen.

Interestingly, one of the arguments made for an income tax was quite similar to the today’s rhetoric of income inequality. For example, in promoting a new national tax system consisting of an income tax and inheritance tax, Theodore Roosevelt stated this:

As a matter of personal conviction, and without pretending to discuss the details or formulate the system, I feel that we shall ultimately have to consider the adoption of some such scheme as that of a progressive tax on all fortunes, beyond a certain amount either given in life or devised or bequeathed upon death to any individual — a tax so framed as to put it out of the power of the owner of one of these enormous fortunes to hand on more than a certain amount to any one individual; the tax, of course, to be imposed by the National and not the State Government. Such taxation should, of course, be aimed merely at the inheritance or transmission in their entirety of those fortunes swollen beyond all healthy limits.

You can check out more of Roosevelt’s statements here.

Word-For-Word:

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

For the full text of the Constitution, visit the Interactive Constitution here.

Civic holidays are occasions to commemorate America’s history, celebrate our rights and responsibilities as citizens, and learn about our constitutional ideals. Download a PDF of the 2013 Civic Calendar here.

Holly Munson is Assistant Editor of Constitution Daily, the blog of the National Constitution Center.

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So far, Boehner has publicly engaged in a war of words with President Barack Obama, who has vowed to keep his presidential campaign pledge to hike taxes on the wealthiest 2 percent of Americans.

Boehner has long lobbied for tax code reform as the ultimate answer to the problems, along with entitlement spending cuts.

The fiscal cliff received some discussion during the presidential election, but in the past month it has become the biggest topic in American politics—with Boehner as literally the face of the debate.

With every Google search about the topic, Boehner’s picture seems to appear with most of the stories from major media sources. Sometimes, his official House picture appears, but other times, editors pick an image of Boehner’s face caught in a grimace or another unusual reaction.

The president will face his own intra-party problem in the coming weeks, since any likely  budget compromise will include slowing annual increases to Social Security and raising the eligibility age for Medicare.

But for now, Boehner is under attack from liberals and conservatives alike after presenting a plan that includes some tax increases.

The fiscal cliff is the nickname for a combined set of tax changes and spending cuts that Congress agreed to last year during talks about raising the debt ceiling.

The tax-and-spend combination was believed to be so politically dangerous that a bipartisan group of Congress members, called the super committee, would be forced to work out a compromise.

Boehner was one of four congressional leaders who picked the 12 members of the super committee. However, in November 2011 the super committee announced it was passing on making a decision.

That led to the dreaded fiscal cliff going into effect in January 2013, as mandated under the terms of the Budget Control Act of 2011.

According to the Congressional Budget Office, the cliff will realize between $560 billion and $607 billion in deficit savings in the next fiscal year for the federal government. And about $400 billion of that savings comes from ending the Bush-era tax cuts and other tax-relief measures. The other savings come from cuts to about 1,000 government programs, including defense-budget cuts.

In recent days, Boehner has become the target of various members of his own Republican party, including Rand Paul, Jim DeMint, and even his Senate equivalent, Minority Leader Mitch McConnell. Added to the mix is conservative tax crusader Grover Norquist, who is threatening to defeat any candidate who votes for any tax increase in a compromise bill.

“Speaker Boehner’s $800 billion tax hike will destroy American jobs and allow politicians in Washington to spend even more, while not reducing our $16 trillion debt by a single penny,” DeMint said in a statement.

The Boehner plan would raise $800 billion in new unspecified “tax revenue” by closing tax loopholes. It also saves another $1.2 billion with cuts to entitlement and other government programs.

The Boehner plan is careful to state that no tax-rate increases are part of the proposal, which is called the “Two-Step Approach to Hold President Obama Accountable.”

In addition to being attacked by his own party members, some Democrats have been critical of Boehner, while others have told Boehner to encourage some GOP members to vote along with the Democrats.

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So far, public opinion seems to be on the side of the Democrats. A new Washington Post/Pew Research Center poll says 53 percent of Americans will blame the Republicans if the fiscal cliff becomes a reality, while 27 percent will blame the Democrats.

Only 40 percent of Americans believe the fiscal cliff will be averted by Congress by January.

That puts Boehner in the hot seat, with criticism from both parties and the public as motivating factors.

On Wednesday, he said it was President Obama’s job to come to the bargaining table.

“We’re ready and eager to talk to the president and to work with him to make sure that the American people aren’t disadvantaged by what’s happening here in Washington,” Boehner said at a conference.

“We need a response from the White House,” he said. “We can’t sit here and negotiate with ourselves.”

President Obama on Tuesday repeated his desire for a tax increase on the wealthy.

“Let’s let tax rates on the upper-income folks go up,” Mr. Obama told Bloomberg Television. “And then let’s set up a process with a time certain, at the end of 2013 or the fall of 2013, where we work on tax reform…and it’s possible that we may be able to lower rates by broadening the base at that point.”

Marketplace Fairness Act.

The giant online retailer Amazon is in the process of charging Internet shoppers in some states for sales and use taxes for products purchased online, based on where they live.

Amazon is voluntarily charging the taxes as part of an agreement with some state governments in an effort to avert lengthy litigation. Amazon also maintains distribution facilities in some states.

Other online sellers, like eBay and Overstock, are strongly opposed to current efforts to implement online sales and use taxes. Facebook, Yahoo! and AOL are also part of an industry group called NetChoice, which opposes such measures as restrictive to small business.

In the past, online businesses cited a 1992 Supreme Court ruling, Quill Corp. v. Heitkamp, as proof that websites and online retailers don’t have to charge—and collect—sales taxes in states where they don’t have a physical business.

Quill was an out-of-state main-order house that sold products without having a store or sales staff in North Dakota.

The Supreme Court found that states had a right under the Due Process Clause of the Constitution to collect sales taxes, but the burden placed on out-of-state businesses violated the Commerce Clause.

“The State’s enforcement of the use tax against Quill places an unconstitutional burden on interstate commerce,” said Justice John Paul Stevens.

The court then placed the ball in the court of Congress, saying that the “underlying issue here is one that Congress may be better qualified to resolve, and one that it has the ultimate power to resolve.”

Two decades later, bipartisan support grew within Congress this summer of the national enforcement of sales and use taxes in the 45 states that assessed them.

The requirement of any national online sales tax measure would be to streamline the process used by any company to collect sales and use taxes across 45 states, so it isn’t a burden to conducting business.

In a tough economic climate, states want the tax revenue from online sales. Some states, like Pennsylvania, are requiring that tax payers estimate what they buy online each year as part of an annual use tax.

The National Conference of State Legislatures estimates that online sales taxes, if enforced nationally, could bring in $23 billion a year for such states.

One problem stalling congressional action is deciding on how such a bill would affect small businesses.

The primary piece of legislation is the Marketplace Fairness Act, proposed by three senators: Richard Durbin (D-Illinois), Mike Enzi (R-Wyoming) and Lamar Alexander (R-Tennessee). It would exempt a business making less than $500,000 a year from collecting sales and use taxes.

Steve DelBianco, the executive director of NetChoice (the industry group opposed to the current efforts), told the Senate in August that a proposed streamlined tax-collection process would add to the costs and complexity of running a small business.

Link: Read DelBianco’s testimony

“Congress should not sweep Quill aside without first requiring that states truly simplify their tax systems in an accountable way, while providing adequately protection for America’s small businesses,” he said.

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Supporters of efforts such as the Streamlined Sales and Use Tax Agreement, which has been adopted by 24 states, say it’s an issue of fairness, in addition to states losing out on tax revenue.

The key issue is how effectively a computerized system can be established to collect taxes not only from 45 states and the District of Columbia, but also additional local sales taxes, and get the revenue in the hands of the correct people, without imposing a huge cost on small business.

The Marketplace Fairness Act will likely face challenges in Congress before it could become a law, and then face a whole new set of legal challenges if it is passed.

A top lobbyist told The Hill that the three top supporters of the Marketplace Fairness Act will try to get the law passed before January.

David French, from the National Retail Federation, said the task will be much tougher in the House than the Senate.

Senator Jim DeMint (R-South Carolina), a powerful senator aligned with the tea party, is a vocal, public opponent of the Marketplace Fairness Act.

“If states want more taxes, they can raise taxes on their residents, but it’s antithetical to our federalist system to let states raise taxes on out-of-state residents,” DeMint said in editorial in U.S. News & World Report in August.

“Call this legislation what it is: A nationally-mandated Internet tax on small business. It’s anything but fair,” he said.

The Hill says DeMint had put the bill on his lame-duck watch list for December.

Another person on record as opposing the Marketplace Fairness Act, although not as vocally as DeMint, is Grover Norquist from the Americans for Tax Reform.

The bill’s supporters have presented the law as a states’ rights issue, which may help it get some traction, and as an effort to collect taxes and close tax loopholes. In fact, the introduction of the bill calls it an effort “to restore States’ sovereign rights to enforce State and local sales and use tax laws, and for other purposes.”

But passing the bill will be tricky in a potentially super-charged political climate after a general election and during fiscal cliff negotiations.

And the appearance of a tax hike on small businesses and consumers, even if it is presented as closing a tax loophole, will get a lot of attention in the online community.

Scott Bomboy is the editor-in-chief of the National Constitution Center.

Lincoln Memorial, photo via Wikimedia Commons

Americans are enjoying a brief tax holiday this year–filings are not due until April 17–and credit for the postponement goes to an unexpected hero: none other than Abraham Lincoln. (Of course, Lincoln was also responsible for introducing federal income taxes in the first place, but that is another story.)

The explanation for the reprieve has nothing to do with the burdens of taxation, and everything to do with the blessings of liberty. A hundred and fifty years ago, Lincoln became the first American president to sign a law–any law–restricting slavery. On April 16, 1862, he approved a measure freeing (technically buying–then the biggest government bailout in history) all slaves in Washington, D.C. The capital now marks the 16th as a holiday, with government offices shut down, the IRS included.

That the event that inspired this commemoration has been largely forgotten is in a way understandable. Five months later, Lincoln issued his more famous and far-reaching Preliminary Emancipation Proclamation. That document promised freedom to slaves in all rebel territory unless Confederate states returned to the Union. When, to no one’s surprise, the states refused, Lincoln issued his final proclamation on New Year’s Day 1863, declaring all slaves in rebellious states “then, thenceforward, and forever free.” These two landmark orders understandably overshadowed D.C. emancipation in historic importance. By 1865, the newly approved 13th Amendment to the Constitution finished the job by outlawing slavery wherever it still existed.

By any analysis, the April 1862 statute whose sesquicentennial we mark this month was limited and ill-advisedly delayed. It freed Washington’s slaves immediately but also compensated their owners in the amount of $300 per person. Lincoln, who would have preferred compensated emancipation to any other approach to ending slavery–he reasoned it was cheaper for the government to buy back slaves than to wage war–also preferred that D.C. emancipation be gradual. He argued that immediate freedom would place sickly and elderly slaves in jeopardy should masters evict them from their homes.

So the future “Great Emancipator” kept the D.C. freedom bill on his desk, unsigned, for two long days–delaying, he confided, until one Kentucky congressman could spirit his own aged servants back to his home state, where slavery remained lawful. This very newspaper reported “turbulence and disorder” throughout Washington, with “slave-hunters chasing up their dark-skinned chattels, to remove them, into Maryland and Virginia” before emancipation could be approved. Yet when Lincoln finally did sign the bill, but asked Congress to consider an addendum to exclude “minors and lunatics” from its requirement that claims be filed within 90 days, The Inquirer praised this further caveat as “manifestly just.”

For all its faults, delays, and stipulations, however, the D.C. bill earned prompt and almost universal praise. Whatever its proscriptions and morally repugnant (to modern sensibilities) offer of cash rewards for slave-owners–and despite Lincoln’s hesitancy in approving it, and unreasonable fears about the imagined consequences of immediate liberty–D.C. emancipation became one of the most lavishly praised acts of his presidency. Lincoln received more unbridled editorial kudos for signing this narrow piece of legislation than he did for the Emancipation itself. The more famous measure provoked some critics to complain of Lincoln’s unbridled use of executive power and others to complain it applied only to rebel states, leaving slavery in loyal border states like Kentucky unmolested.

Yet the mere fact that a Congress and a president had worked together to end generations of pro-slavery tradition somewhere resonated with breathtaking power in April 1862. No doubt the excitement owed much to the venue: the national capital. It did not seem to matter that only 3,000 were liberated in Washington while millions remained in chains nationwide. As Frederick Douglass predicted: “Kill slavery at the heart of the nation, and it will certainly die at the extremities. This looks small, but it is not so. It is a giant stride toward the grand result.”

The “grand result” would take three more years, and cost hundreds of thousands of lives on the battlefield. But that spring day, the tide for freedom turned irrevocably.

So on Monday, April 16, when most Americans use their unexpected tax holiday merely to take one last look at their 1040 forms, it might be appropriate also to remember D.C. Emancipation–the milestone that gets too little credit for redirecting the arc of American history toward freedom.

Harold Holzer is senior vice president, external affairs, at the Metropolitan Museum of Art and chairman of the Lincoln Bicentennial Foundation.

United States Supreme Court building. Photo by Jeff Kubina

American constitutional history has not moved in a straight line, from the Founding to the 21st Century. Its development is a wavering line, with twists and turns that were far from predictable. The amendment process under Article V has followed a meandering path — in fact, the latest amendment, the 27th, dealing with congressional salaries and ratified in 1992, was actually one of the first proposed, in 1789. Meandering, too, have been the Supreme Court’s interpretations of what the Constitution ultimately means — for any given day and time.

How, then, is it possible to assign a place in history for a new constitutional development? Does it rank among the most important, and with what can it be compared, closely or loosely? Where, one may ask, will a Supreme Court ruling on the Patient Protection and Affordable Care Act stand in history?

This coming week, the nine Supreme Court Justices will set out on another constitutional journey, and it probably will be a quick one: it might well be concluded in almost exactly three months. The three days of hearings on the new federal health care law — the most time set aside for a case in more than four decades — will be saturated with history. Monday’s argument will focus on an 1867 law, Tuesday’s will talk about precedents going back at least to 1942 and maybe all the way back to 1819, and Wednesday’s will have echoes of states’ rights doctrine all the way from the Philadelphia Convention and its Grand Compromise in 1787.

And, when the Court does rule, probably by late June, few doubt that it will have done something historic.

Without exaggeration, the final ruling has the potential to be the most important declaration on how the Constitution divides up power between national and state governments since the New Deal days some three quarters of a century ago. Without exaggeration, it could be the most important pronouncement on the federal “safety net” since the Social Security Act was upheld by the Court in 1937. Without exaggeration, a decision to strike down all or part of the new health law could be the most severe rebuff of Congress’s power over the national economy since the Sick Chicken Case in 1935. And, without exaggeration, a nullification of the Act in whole or in part could be the most devastating blow to presidential power and prestige since the Steel Seizure Case in 1952.

The law at issue is not directly about civil rights, but for the nation’s working poor, the coming ruling on the law’s validity could be as important to them as a 1938 decision was for racial minorities, essentially starting the modern civil rights revolution. And for individuals who want to be left alone by their government, the final decision may be a reminder of a 1905 decision that first spelled out a theory of individual liberty that, in time, would contribute importantly decades afterward to that same civil rights revolution.

Yes, it is that important — at least in potential. Whether or not it lives up to that potential may depend, to a significant degree, on how the Justices react to the 90-minute argument that opens the week on Monday. Many observers, and certainly most of the media, have been waiting most eagerly for Tuesday’s two-hour argument, when the biggest cog in the entire machinery of the Affordable Care Act, the individual mandate, is up for review.

But, in the end, the Court just might not rule at all on the individual mandate if it were to decide that no challenger had a right to go to court to contest the mandate’s constitutionality. That is Monday’s issue, and the first lawyer to step up to the Court’s lectern this week will be urging the Justices to do just that — to take a pass. Although neither the challengers nor the federal government currently believes that the federal Anti-Injunction Act was a bar to the lawsuits, the lower courts took differing positions on that, and the Justices have agreed to sort it out, naming a Washington lawyer with no other part in the case to make the point.

The Court itself had taken differing positions on that, in rulings decades ago, but then switched and steadily reinforced the Act’s ban on lawsuits that threatened to stop the U.S. Treasury from collecting tax revenues. If it should turn out that the Justices do apply the Act to the lawsuits against the mandate, the mandate would survive this test, and maybe $4 billion of tax revenue would still come in over coming years.

That would take away from this case much of its historic potential, because the constitutional issues surrounding the mandate are so momentous and yet would remain unsettled for now. But such a ruling would be one of the most significant gestures the Court has made to protect the national Treasury in 50 years — an action that could rank constitutionally with the ratification of the Sixteenth Amendment in 1913. It would be a strong message to lower courts to keep the courthouse doors closed to attempts to block federal legislation that is designed, at least in part, to produce revenue for the government’s coffers. But the practical effect, for the mandate, would be that it could not be challenged until after it had actually gone into effect — in 2014 — and was then enforced by the government.

There would be a political effect, too: the mandate’s future would remain an issue in this year’s congressional and presidential campaigns, and the outcome of the national election on November 6 could either doom the mandate to a repeal effort, or save it, at least until it went into effect. The issue of its constitutionality might not return to the Court until 2015 at the earliest.

However, when Monday’s argument winds up, close to noon, the nation — and even the Court — will not yet know whether the mandate’s fate is going to be decided. The Court will move on to Tuesday, to explore the mandate itself as if its validity were going to be settled. And that is the argument in which the biggest parade of history will march across the courtroom.

The federal government gets to open the argument that day, and its top Supreme Court advocate will seek to persuade the Court that history is on the government’s side, that health care is in a crisis of national proportions, that Congress must have the authority to rise to such occasions, and that this controversy calls for judicial modesty. For almost as long as there has been constitutional history, that attorney seems sure to argue, economic crises too big for the states to handle have been left to Congress. If Congress was constitutionally disabled from enacting this law, it will have had to surrender core constitutional power, the Court may be told.

And then two lawyers for the challengers will take turns arguing that this case does not involve just another episode of familiar history, but rather that this is constitutional history starting over. Congress, they will say, has never dared to so manage Americans’ private lives as it now has attempted, without precedent and without even a hint of authority from the Constitution. If Congress can do this, there is no invasion of private choice that will not be constitutionally tolerable, the Justices almost certainly will be told.

Wednesday will be a double-header on constitutional history. In the morning, the Court will return — as so often in the past — to the fundamental division of government authority between Congress and the courts — horizontal separation of powers that James Madison thought essential to individual liberty. That will be at the center of the argument on what happens to the remainder of the new health care law if the individual mandate were to be struck down. And, in the afternoon, the Court will trace many of history’s earlier steps along the line that divides national and state power — the vertical separation that Thomas Jefferson thought essential to the sovereignty and dignity of governments closest to the people. That will be the focus of the argument over the expansion of the Medicaid program for the poor, for the first time providing those benefits to millions of the working poor and to childless adults.

By week’s end, America will have witnessed — for most people, from afar, because only a couple of hundred seats are available for those who will see it actually happen — a deeply serious and probably quite revealing conversation about the Constitution and what it might mean 225 years after it was written.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearing house of information about the Supreme Court’s work.

If the Court ultimately strikes down that mandate, it may then turn to the question of whether any or all of the remainder of the new law can remain intact and functioning.   The Court will hold a hearing on that next Wednesday at 10 a.m., with the audiotape recording to be released within an hour or so after that hearing has concluded. It will be a 90-minute hearing. The description below will serve as a guide on what to expect in listening to that audiotape.

The Courtroom of the Supreme Court of the United States. (Franz Jantzen)

Few exercises in interpreting the Constitution are as bizarre as the one that the Supreme Court and lower courts go through if they strike down only a part of a multi-faceted law, and then decide what of the remainder can survive. It is bizarre because, in asking itself to decide the fate of the balance of such a law, a court actually is making a sophisticated guess of what Congress would have wanted if it could not have all of what it actually wrote into a law. It could ask Congress directly what it wanted, but it does not do that; it takes on the task itself, when Congress has not said in the body of a law what it wanted to happen if part were nullified.

But it is not an everyday exercise. It is supposed to be rare, because it draws a court quite close to the writing of a law, supposedly a task that the Constitution’s Article I gives to Congress alone. When it does occur, a court is supposed to nullify no more of a law than is absolutely necessary.

This process of selection of what to keep and what to cast aside, along with a constitutionally defective part of a law, is called “severability” analysis. In other words, if part of the law is nullified, can the rest be “severed” from it and kept on the statute books, still functioning.

The Supreme Court’s scheduled hearing next Wednesday morning will involve three lawyers, engaging the Court on what they think it should do, in the event it nullified the individual mandate. The argument will unfold as if the Court has chosen to pull the mandate out of the ACA, although it obviously won’t have done it by then.

Stepping up to the lectern directly in front of the nine Justices (and all nine of them will participate), the lawyer for the challengers to the mandate and other parts of the new law will tell the Court that the entire ACA is a package unto itself, with all of the parts interacting. That attorney may liken it to a fine watch, with the mainspring being the individual mandate: take that out, and nothing else works.

The lawyer probably will go over the law in some detail – if not too often interrupted by the Court – to show how he believes all of the parts depend upon each other. The new health care law, he is apt to say, has a demand side for health care insurance, and a supply side, and that both were meant to bring about near-universal health insurance.

The Justices are likely to interrupt that lawyer early and often, on just how the law is supposed to work, and on what evidence he has to show what Congress would prefer, knowing that the mandate was gone.

Responding, the lawyer may talk about how the leaders in Congress fashioned the new law along with major players in the health insurance and health care fields, and how so many lawmakers themselves said at the time that this had to be an all-or-nothing, comprehensive project to change the way the insurance market operates.

Along the way, incidentally, the lawyer may also seek to say again what was said in challenging the mandate itself, about how it supposedly coerces Americans into buying health insurance that many of them don’t want. The idea of that would be to keep that line of argument before the Court, since it won’t have to decided that question yet.

Some of the members of the Court, having read the U.S. government’s brief, may well press the challengers’ lawyer to say why the Court even needs to rule on the severability question (the government brief has made a complex argument why the Court, even if it strikes the mandate, need not go into the remainder of the law).

The lawyer would respond to those questions by saying that the government has it all wrong on that point. Explaining, that lawyer will say that the issue of “severing” parts of a law after a part was struck down is a search for a remedy for the constitutional violation, and not a fresh new challenge to the remaining parts of the law.

Justices are also likely to press that attorney on some specific parts of the law that remain, to see why they would have to fall with the mandate. Many parts of the law, it could be noted, already are being implemented and the Court could ask about what is to happen to those.

At a number of points in that lawyer’s argument, he is sure to make a point about judicial restraint: the best thing for the Court to do, out of respect for the constitutional separation of powers, is to nullify the entire ACA and then leave it to Congress to do what it wants with health care knowing that it could not have the mandate.

Next up to the lectern will be the federal government’s lawyer. The opening thrust of that attorney probably will focus on the argument that the Court need not confront the severability issue at all. That almost surely will draw a flurry of questions from the Justices, because that argument is strongly disputed not only by the challengers but also by the Court-appointed lawyer who has been selected by the Court to join in the argument to make the point that no part of the ACA need be sacrificed with the mandate.

Pressed on the point, the government lawyer may then feel a need to go ahead and discuss severability, and will no doubt stress that the Court should be very wary of striking down any more of the ACA than it absolutely must. Only that, the lawyer will be inclined to say, will confine the judicial task to the narrowest choice about what to keep and what to discard.

As the argument along those lines proceeds, the government attorney will seek to make a case that two parts of the ACA would not be able to function without the mandate: a requirement that insurance companies cover everyone, even those with pre-existing medical conditions, and the requirement that they do so without raising rates beyond affordable levels.

The Justices may well demand fuller explanations on those points, to test whether those two provisions are really central and whether they could actually be made to work even if the mandate were not in the law to bring in premiums from newly covered holders of health insurance policies.

There could be talk about something called the “death spiral.” This is an argument that, without the mandate bringing new premium revenue into the coffers of health insurance companies, the new coverage obligations the Act lays upon them will drive them toward financial collapse. There may be a discussion of how some states that experimented with broader coverage without a mandate to produce more insured people found that the experiment was a failure.

It might be that some will talk of the Massachusetts experiment, which did couple new health insurance obligations with an individual mandate, and it worked – as well as setting up a model that the ACA borrowed. The Massachusetts plan is associated with former governor Mitt Romney, but whether his name comes into the hearing is doubtful, since that might seem like a commentary on his current presidential campaign. The Court will be wary of seeming to be interested in the politics of health care.

Making the final argument, before the challengers’ lawyer gets up for a brief rebuttal, will be the Court-appointed lawyer specifically assigned to make one overall point: that the entire remainder of the ACA can remain on the books, and would be functional, even without the mandate.

Congress, that lawyer will say, would not have wanted to put everything back to square one even if it knew the mandate would not survive in the courts. Along the way, this attorney will allude to the rarity of the Court’s use of its severability powers to remake a federal law, and will urge special caution in doing it this time.

The members of the Court will no doubt seek from this lawyer a detailed explanation of how the surviving parts would function, without setting off the feared “death spiral.”
Once that hearing, and the others the Court is holding next week, have concluded, the Justices will meet in a private deliberation room at least once, cast preliminary votes, and get started on the task of drafting one or more opinions to resolve all of the issues – if they conclude that they have to decide everything brought to them in this historic case. A final ruling, or rulings, is not likely to emerge until late June.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearing house of information about the Supreme Court’s work.

The description below will serve as a guide to that mock hearing, and also as a guide to the actual Supreme Court hearing on the mandate; the Court will release the audiotape of the hearing on the mandate next Tuesday afternoon, on its website. This Thursday, Constitution Daily will provide a second guide on what to expect when the Court, next Wednesday afternoon, releases the audiotape of its hearing on the impact on the Affordable Care Act as a whole, if the mandate were to be struck down.

As the new health care law has made its way through the federal courts, and as it has unfolded so far in the written legal filings by lawyers in the Supreme Court, two very clear but conflicting story lines may shape the constitutional fate of the individual mandate (technically called the “minimum coverage provision”) – the heart of the new Act.

The lawyer for the government will tell the Court that Congress, in choosing a series of “market reforms” of the nationwide health insurance industry, was doing what Congress has done many times before. That is, it has faced a national problem, affecting commerce that goes beyond individual state boundaries so individual states can’t solve it, and has worked out a national solution. The mandate, that lawyer will say, is a critical feature of that economic response. (See this recent story from Akhil Amar and Todd Brewster.)

The lawyer for the challengers will tell the Court that Congress is not really seeking to regulate commerce, but rather is seeking to create commerce – by forcing individuals who do not have health insurance, and do not want it, to go out into the marketplace and buy an economic product. Never before, that lawyer will say, has Congress done anything like that, and it has no constitutional authority to do it now. (For this perspective see Ilya Shapiro’s recent post.)

The lawyer for the government will argue first, because a federal appeals court struck down the mandate and the government is appealing that result. That attorney will assume that the Court is quite familiar with the facts about the mandate, but will go over how it works and why Congress chose it. The problem that Congress was facing was that some 50 million Americans do not have health insurance, but they someday will definitely need medical care, as everyone does, and so some means must be found to pay for that.

Americans, according to that lawyer, have for many years paid for such care by having insurance and they get it before they actually need it. That is all that Congress aimed to do in adopting the mandate.

But, the attorney will note that Congress had found that 50 million Americans don’t have health insurance, some because they were turned away, some because they can’t afford it, some because they prefer to pay out of their own pockets. But Congress wanted to be sure that, when all of the uninsured actually needed medical care, the cost of providing it did not have to be covered by the hospital or clinic or doctor, or by a rise in premiums to those who do have health insurance.

Congress, according to that lawyer, was aiming for nearly universal coverage at affordable rates, and it concluded that the only way to have both was to assure a sufficient number of customers for the health insurance industry that it can afford to write a policy for virtually all Americans. The mandate will bring in the customers, the lawyer will note.

Do not be surprised if the lawyer says something like “this is classic economic regulation of economic conduct.” A person without insurance is not really outside of the market for health care; they just don’t need it yet. Congress wanted to make sure they could pay when they do need it.

Because the government believes that a series of prior Supreme Court rulings interpreting the Constitution’s Commerce Clause support the new mandate, the government’s part of the hearing will feature mention of those precedents – especially Wickard v. Filburn in 1942 and Gonzales v. Raich in 2005. Neither one had anything to do with medical care or health insurance, but both gave Congress broad authority to regulate not only business that runs across state lines, but even local business that can have a significant impact on that wider commerce.

Reacting to the government lawyer, the members of the Court will question whether there is any precedent that even comes close to what was done with the mandate. Prompted by having read the challengers’ briefs, they will want to know whether Congress was just subsidizing the insurance industry to get it to go along with a new health law after years of resisting.

But, most of all, the Court’s members will want to know where the limiting point is. Some may actually say that, whatever they decide about the mandate, they have to think about what that will mean down the road, when a future Congress may try something else that is novel. They will be interested in what their precedents have said, and may actually disagree with the lesson the government lawyer draws from them.

If the lawyer tries to press a back-up argument that, even if the mandate is not justified under Congress’s power over commerce, it can still be upheld under its taxing power, that is likely to stir considerable skepticism from the bench.

The government lawyer will not use all of his time in his first turn, saving some to answer the other side’s argument.

When the challengers’ lawyer starts, he will turn very quickly to the claim that there is absolutely nothing in the Constitution – not the Commerce Clause, not the Necessary and Proper Clause, and not taxing power under the General Welfare Clause – that can justify such a deep intrusion by the national government into the lives of ordinary citizens. The perceived threat to individual liberty will be a very prominent theme.

But early in the argument, that lawyer also will take on the economic claims that the government lawyer has made, suggesting that the mandate will not work the way the government says it will, because the people who are the most frequent customers for medical care are not even covered by the mandate, or will get covered by some government program like Medicaid for the poor.

That lawyer will probably tell the Court that Congress was “conscripting” healthy people – particularly, young and healthy people – into becoming insurance customers in order to provide an economic benefit for the insurance companies and their present policyholders.

When the challengers’ attorney talks about the Supreme Court’s prior rulings, he will say that none of them authorized Congress to drum up business for a private industry. The farmer in the Filburn case and the grower of medical marijuana in the Raich case were already taking part in an economic market, and were not being dragged into it by Congress.

Along with the claims about the threat to individual liberty, that lawyer will say that the Constitution meant to leave it to the states to control health care policy, and that the Tenth Amendment was designed to keep Congress from acting as if it had a form of national “police power” to intrude on the states’ prerogatives.  Federalism – the division of power between national and state governments – itself was designed to protect individuals’ liberty, will be another likely point of emphasis.

On the future implications from any decision against the mandate, the challengers’ attorney probably will say that the Court need not disturb any other federal law because the mandate is such a novel approach that it can be nullified with no secondary effects.   The attorney will want to persuade the Court that what is revolutionary here is what Congress did, not what the Court would do to restore the constitutional balance.

The members of the Court will test that lawyer about whether the Court has the authority, when Congress has made an economic judgment, to second-guess the lawmakers. They may remind that attorney that economic regulation is judged by the most lenient constitutional test, so as not to infringe on Congress’s power over interstate commerce. Some on the bench may say that judges do not have the economic understanding to judge how to deliver health care or how to pay for it.

To the lawyer’s argument that states’ dignity and sovereignty will be deeply impaired by the mandate, some of the Court’s members probably will suggest that the Court has already crossed that bridge in prior precedents. They may even suggest that the challengers are trying to undo the entire field of jurisprudence over commercial regulation.

For both lawyers, most of the questions coming from the bench probably will be about Congress’s powers under the Commerce Clause, though some will explore the Necessary and Proper Clause, and at least a few questions may focus on the mandate as a form of tax.

(With the real Supreme Court, the decision on the mandate, and on the other issues it is considering, will not be announced until weeks from now, close to the end of the current term in late June. However, the “Justices” on the Jennings moot court will conference in the open and reach a decision at the conclusion of the program.)

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy.  He has reported on the Supreme Court for 53 years, currently covering it for SCOTUSblog, an online clearing house of information about the Supreme Court’s work. Denniston will be live chatting during the Peter Jennings Project moot court webcast.