It triggered a law school flashback. Once again, I was in my least favorite class, federal tax law, listening to a discussion so arcane and bureaucratic that it was hard to stay awake.
I speak, of course, of today’s 90 minutes of argument before the Supreme Court. At issue: whether the Anti-Injunction Act (AIA) bars the court from considering this challenge to ObamaCare until the plaintiffs have actually been forced to buy insurance or pay a penalty for not doing so.
Don’t get me wrong. The lawyers did a good job presenting their particular sides of the arguments. But it was very clear from almost the beginning that none of the justices are inclined to use the AIA as an excuse for not tackling the substantive issues at stake in this case.
Even the liberal justices were having trouble with the position advanced by Robert Long, the private attorney appointed by the justices to argue that the AIA bars the suit. The AIA prevents prospective lawsuits from being filed before a tax has been assessed or paid. As Long appropriately put it, the AIA is a “pay first, litigate later” rule. But neither Congress nor the president had given Long much to work with in making his arguments since they consistently referred to the penalty an individual has to pay if he fails to buy a health insurance policy, not a tax. Only if the Supreme Court decides that the punishment is a tax will the AIA bar the lawsuit.
As Justice Breyer pointed out to Long, however, Congress had “nowhere used the word ‘tax.’ What it says is penalty.” As Justice Ginsburg, who many people classify as the most liberal member of the Court, said, the penalty was intended to make people buy health insurance to avoid paying a fine to the government. A similar federal law modeled on the AIA “does not apply to penalties that are designed to induce compliance with the law, rather than raise revenue.” According to Ginsburg, the penalty in the ObamaCare law “is not a revenue-raising measure because, if it’s successful, … nobody will pay the penalty, and there will be no revenue to raise.” Justice Sotomayor joined in, saying, “Here we have one where the Congress is not denominating it as a tax; it’s denominating it as a penalty.”
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.