Quick Take — Court Seems Likely To Reach Merits Of Mandate’s Constitutionality


The Supreme Court has just adjourned after its first day of arguments on the health care cases.  Stay tuned for a full update around 2 p.m. and a Q&A at 3 p.m.  But for now, here are quick highlights from Dom at the Court:

The Court heard argument today on whether the Anti-Injunction Act — a federal law that prohibits taxpayers from suing in advance to stop the government from collecting a tax — means the courts lack the power to decide whether the individual mandate is unconstitutional until it takes effect in 2014.  As the individual mandate is structured, people required to buy insurance who fail to do so must pay a monetary penalty to the government, collected by the IRS.  That has led some courts and commentators to suggest that the mandate’s monetary penalty is really a “tax,” and therefore that taxpayers can’t contest it in court until after they’ve already paid it and sought a refund.

  •  Justices Roberts, Kagan, Alito, Sotamayor, and Scalia all suggested by their questions that they think the Anti-Injunction Act is nonjurisdictional.  If the court holds the Anti-Injunction Act is not jurisdictional, it should proceed to the merits of the case because the Government would have waived the potential Anti-Injunction Act argument by not raising it below.
  • The Solicitor General, Donald Verrilli, argued that the mandate is a tax for purposes of Congress’s taxing power, but not a tax for purposes of the Anti-Injunction Act.  That argument drew multiple hostile comments.  Said Justice Alito, “Today you’re arguing the penalty is not a tax. Tomorrow, you’ll be here arguing the penalty is a tax.” He asked whether any court has embraced that reading. Verrilli could not name a case.
  • Several justices asked Verrilli whether any consequences follow from not buying insurance under the individual mandate, other than the tax penalty.  For example, Justice Kagan asked whether individuals who do not buy insurance but who pay the penalty would have to answer “yes” if they were asked if they’ve ever violated the law.  Verrilli answered:  “No.”  He said no consequence other than the penalty flows from not obeying the mandate.
  • While it is always difficult to make predictions based on oral argument, the tone of the argument suggested that the majority of the Court wants to hold that the Anti-Injunction Act does not apply and reach the merits.

Stay tuned for a full post by 2 p.m.  And please join us for a Q&A on this site from 3 p.m. to 4 p.m.  Dom will start a new post just before 3 p.m.; you can ask your questions in the comments, and he’ll do his best to answer them.

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