The solicitor general, Donald Verrilli, Jr., opened his argument by telling the Court that “this case presents issues of great moment, and the Anti-Injunction Act does not bar the Court’s consideration of those issues.” The whole reason a private attorney had been appointed by the Court was because the Justice Department had changed its position on whether the punishment for not complying with the individual mandate was a penalty or a tax — first claiming it was a tax, then claiming it was a penalty, and now claiming it was both. As Justice Sotomayor noted, “They [the government] raised it and then gave it up.” Greg Katsas, on behalf of the challengers, answered that by agreeing that not only was the government “not pursuing it here, they are affirmatively pursuing an argument on the other side.”
In fact, the government is taking two completely contradictory positions in this case. As Justice Alito pointed out, it is trying to call the penalty a penalty for one purpose but a tax for another purpose:
General Verrilli, today you are arguing that the penalty is not a tax. Tomorrow you are going to be back, and you will be arguing that the penalty is a tax. Has the Court ever held that something that is a tax for purposes of the taxing power under the Constitution is not a tax under the Anti-Injunction Act?
Verrilli was forced to admit that the answer was “no.” But then, this contradictory position is par for the course when you look at how the government has been defending this litigation, changing its position on issues such as this and going from trying to initially delay court decisions to then trying to speed up consideration.
Much more on Tuesday, where the attorneys will get down to arguing the constitutionality of the individual mandate itself, which is the center core of the law.