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The Spectacle Blog
Oral arguments for day one of the Obamacare lawsuits have ended; the subject of today’s argument was whether the individual mandate counts as a tax for the purposes of the Anti-Injunction Act. If it does, the Court can’t rule on its constitutionality until the mandate goes into effect in three years. Neither the Obama administration nor the parties challenging the law believe that the Anti-Injunction Act applies, but a lower court ruled that it does, so the Supreme Court assigned a lawyer to argue for that position. Reporters who were there say that the questions suggest that we’ll get a substantive ruling one way or another this year.
From the right, Phil Klein tweets: “Oral args over. No merits today, but justices seemed broadly skeptical of idea that mandate is a tax.”
And: “Ginsburg: ‘this can’t be a rev raising measure, bc if it’s successful, there won’t be any rev raised.’”
And: “Breyer: ‘they called it a penalty and not a tax for a reason.’”
And: “But Roberts skeptical that mandate can be separated from penalty: ‘Why would u have a requirement that is completely toothless?’”
From the left, Jonathan Cohn has a similar reaction: “SCOTUS oral arguments over. Insta-rxn: Justices seemed skeptical of tax argument, and argument that anti-injunction act should block case…”
And: “Breyer, Ginsburg were among those asking tough questions about why mandate penalty counts as a tax”
We shouldn’t read too much into the Justices’ questions — they aren’t always predictive of the ruling — but the commentary does suggest that they’re leaning strongly against the Anti-Injunction Act argument, as both sides urged. Phil speculated this morning that this might have significant beyond this discrete issue:
Though this morning’s arguments don’t concern the underlying merits of the challenges, in order for the Anti-Injunction Act to apply, the mandate would have to be seen as a tax. Thus, there is some overlap with one of the key defenses the Obama administration is offering for the mandate - that it is a constitutional exercise of the taxing power. So we may get some clue as to the justices’ thinking on the tax issue.
I’m skeptical that we can read very much into the justices’ views on the individual mandate — the subject of tomorrow’s arguments — from their questions today, but take that for what it’s worth.
UPDATE: Here’s Phil’s more detailed write-up of the morning.
UPDATE: The audio and transcript of the morning’s arguments is here.
View all comments (10) | Leave a comment
More Blog Posts by John Tabin
http://spectator.org/blog/2012/03/26/justices-doubt-obamacare-manda
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Bob| 3.26.12 @ 1:39PM
It's only a tax when labeling it as such is convenient and helps protect the mandate from attack.
Drek| 3.26.12 @ 1:57PM
Ever since FDR's administration, the Federal courts have been hospitable to legal claims extending the power, scope and reach of the Federal government.
And I don't expect anything to change in this case.
This is the logical end terminus of the case law that has been building up for decades.
The supposed "constitutionality" of obamacare flows as naturally from that case law as Roe flowed from Griswold.
Floyd Looney | 3.26.12 @ 1:59PM
Depending on SCOTUS is stupid, but its all we got. We KNOW the GOP establishment won't let it be repealed even if Romney didn't like ObamaCare, which he does.
Drek| 3.26.12 @ 2:19PM
If we have to depend on the judiciary, then we've got nothing to rely on.
I'm beginning to think it's time for millions of American men, with their lawful weaponry, to descend on the Washington Mall, in a peaceful gathering, and make it quite clear that their patience is running thin.
They don't fear the American people.
People are free where their governments fear the people, but where the people fear their governments, then they've ceased to have a government, and instead of have a master.
Who is sovereign?
The elites, the establishment, or the American people.
And it's increasingly becoming clear the question is that, and nothing else.
Trinacria| 3.26.12 @ 3:23PM
Under the "Affordable" Healthcare Act, if one fails to purchase health insurance or pay the penalty for doing so, is it the government's position that this individual would be guilty of tax evasion?
The Bruce| 3.26.12 @ 4:08PM
According to the language of the law, an individual won't "fail" to pay the penalty because the government will have direct access to all of your financianl data. In other words, they'll pull it right out of your bank account.
Trinacria| 3.26.12 @ 4:16PM
Not if I don't have a bank account...
Conservative Bob| 3.26.12 @ 4:42PM
The future of our republic rests on ending, read that as eliminating completely, Obamacare, and holding Obama to a single term in office.
Obamacare erases the concept of constitutionally limited government and a second term will allow him to choose at least on more Supreme Court justice.
Nail biters are great in sporting events, not with issues relating to our fundamental liberties.
INTJ| 3.26.12 @ 6:04PM
In trying initially for this to be considered a tax to avoid Supreme Court scrutiny before 2015, the government apparently overlooked the fact that they have the power to tax income - which this does not do - and the power to levy excise taxes - which this is not - but not to create a "tax penalty" that is unrelated to either.
hook| 3.27.12 @ 12:16AM
There is no chance whatsover that the court will have the courage to overturn this monstrosity and in due course the country as we knew it will change for the worse. Obamacare isn't so much about medical care as it is about CONTROL. I think the Romney care comparison is frankly false because it is only a state with enumerated powers. Should it have been enacted? Probably not...but leaving medical care to the states and seeing which system works the best is a sensible idea. No one seems to mention that this massive toxic piece of legislation was rammed through--barely--against the will of the people. I take it back a few conservative souls like Michele Bachmann do point this out.