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.