The discussion Monday focused on two issues within the question of the Tax Anti-Injunction Act (TAIA) and it seemed that both conservative and liberal justices were leaning towards not punting on the matter and reaching the merits of whether the individual mandate is constitutional.
The Court started the morning by questioning whether the government could voluntarily waive TAIA and request that the Court reach the merits of a case or whether TAIA was a “rule” that all courts must adhere to, making it impossible to waive
The justices wrestled with the question of whether TAIA created a procedural protection for the government (which the government could forego should it wish to) or whether TAIA created a procedural rule that bound courts, regardless of the government’s desires.
Justice Sotomayor was concerned with what new cases would arise if the government were allowed to waive TAIA. “What is the parade of horribles that you see occurring,” asked Justice Sotomayor, “what kind of cases do you imagine that courts will reach?”
Justice Scalia immediately countered that “there will be no parade of horribles.” He argued that “because all federal courts are intelligent” they will be able to apply waivers and exceptions appropriately and hypothesizing otherwise was pointless.
Scalia’s leanings seemed to express a collective desire to address the question before the Court. He explained that courts have “a principle that ousters of jurisdiction are narrowly construed” and that “unless it’s clear, courts are not deprived of jurisdiction.”
“I find it hard to think that this is clear,” he concluded, “whatever else it is, it’s easy to think that it’s not clear.”
On the question of whether this individual mandate was, in fact, a tax, the Court seemed skeptical of the governments’ attempts to characterize it as a revenue-raising mechanism that acted like a tax without being technically being one.
In questioning Solicitor General Verrilli, Justice Alito asked him to explain why “today you are arguing that the penalty is not a tax [and] [t]omorrow you are going to be back and you will be arguing that the penalty is a tax.”
“The nature of the inquiry we will conduct tomorrow is different from the nature of the inquiry that we will conduct today,” responded Verrilli. ”Tomorrow the question is whether Congress has the authority under the taxing power to enact [the individual mandate] and the form of words doesn’t have a dispositive effect on that analysis,” he continued, “today we are construing statutory text where the precise choice of words does have a dispositive effect on the analysis.”
Verrilli continued by arguing that Congress “called it a penalty. They didn’t give any other textual instruction in the ACA” to treat the penalty as a tax. Justice Breyer seemed to agree, noting that “Congress has nowhere used the word ‘tax’” to describe the individual mandate penalty and that instructing that the penalty be collected like a tax does not make it one.
Justice Ginsburg also expressed doubt that the individual mandate was a tax. “This is not a revenue-raising measure,” she said, “if it’s successful, nobody will be paying the penalty and there will be no revenue to raise.”
At the end of the day, the justices seemed unlikely to call the individual mandate a “tax” for purposes of answering the TAIA question. Most justices seemed to agree that the law was clearly called a penalty and that the face that the penalty will be collected in the same manner as taxes did not make a “tax.”
This line of argument will make Tuesday very interesting as Verrilli will attempt to argue that the penalty functions as a tax, and is therefore constitutional under the government’s taxing power, even when it isn’t legally called a tax. Legally speaking, the government is trying to have its cake and eat it too and we’ll soon find out whether the Court plans to let them.
Tomorrow, the Court will take up the individual mandate in what promises to be the most contentious day of argument. Check back in to PolicyMic for live coverage of the arguments and my analysis in the evening!