By now it seems clear that the Supreme Court will probably take the case filed by 26 state attorneys general and the National Federation of Independent Business. The states, NFIB and the Justice Department have all said that’s the case the court should take, and DOJ has asked the court to hold other suits until it rules in that one.

For the most part, the two sides want the same thing: a quick hearing focused on the merits of whether the individual insurance mandate is constitutional.

Some of the healthcare law’s victories in lower courts were procedural rulings — cases where courts decided, for one reason or another, that a particular lawsuit couldn’t go forward. The states, NFIB and the federal government all agree that they don’t want that kind of outcome from the Supreme Court. But there are still procedural issues the justices will have to deal with.

First, the Supreme Court will have to decide whether it’s able to hear the case at all. Part of the administration’s defense of the mandate rests on the idea that the penalty for not buying insurance is a tax, rather than a regulatory fine. But a federal law known as the Anti-Injunction Act prevents courts from blocking taxes before they take effect.

Because the administration wants a ruling on the merits, it argues that the Anti-Injunction Act doesn’t apply here — the court shouldn’t think of the mandate penalty as a tax while deciding whether it can take the case now. Then, however, on the merits, the Justice Department argues that the penalty is a tax.

The two arguments are “transparently contradictory,” said Tim Jost, a law professor at Washington and Lee University, who supports the healthcare law.

“They can’t have it both ways,” he said. 

Jost said there are ways for the Supreme Court to get around the Anti-Injunction Act and avoid pushing the case back to 2014. But they can’t avoid it altogether, even though neither side wants a ruling on those grounds. If they don’t find a way around the tax law, he said, “that could be the end of the litigation right there.”

Greg Katsas, who represents NFIB in the lawsuit, said he’s not especially worried about the tax technicalities. NFIB and the states have consistently said that the fine for remaining uninsured is not a tax, for any reason. The justices will have to consider the Anti-Injunction Act, he said, but they could easily determine that the suit can proceed.

“We have a lot of different ways to get over this,” Katsas said.