by Diane Cohen
On day one of oral argument on the President’s health care law, the Supreme Court considered the issue of jurisdiction — that is, whether it even had the power to hear the case or whether the plaintiffs must wait until 2015 to file their case, when the penalty for failing to comply with the individual mandate will begin to be imposed.
At the heart of this debate is the Anti-Injunction Act (AIA), a law from the late 1860s that prohibits courts from taking pre-enforcement challenges to tax laws (thus requiring taxpayers wishing to challenge a tax to first pay the tax and then file for a refund, or not pay and wait for the government to bring a collection action).
But did you know the Court is considering this issue even though the Obama Administration abandoned the AIA defense nearly a year ago? Despite the agreement of the parties that the AIA does not apply, the Court on its own appointed a special counsel to address the applicability of the AIA in this case.
Why did the Court do this, especially given the overwhelming number of post-argument predictions that the Justices were poised to reject that the AIA applies? Two possibilities:
1. Because the Administration is taking positions that are inconsistent, talking out of both sides of its mouth, having its cake and eating it too, or [insert your favorite adage here]. How you ask? Well, hold on and here goes: On Monday, the Administration took the position that the penalty is not a tax for AIA purposes. But today, the Administration will take the position that the mandate is an exercise of Congress’s taxing power. If you are scratching your head, you are in good company. Here’s an excerpt of the exchange between Justice Alito and the U.S. Solicitor General during Monday’s argument:
JUSTICE ALITO: 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?
GENERAL VERRILLI: No, Justice Alito . . . [T]he nature of the inquiry that we will conduct tomorrow is different from the nature of the inquiry that we will conduct today. Tomorrow the question is whether Congress has the authority under the taxing power to enact it and the form of words doesn’t have a dispositive effect on that analysis. Today we are construing statutory text where the precise choice of words does have a dispositive effect on the analysis.
As the New York Times reported, “The judge who first ruled on the case (Judge Roger Vinson of a Florida Federal District Court) described the Administration’s position in a 2010 opinion as ‘an Alice-in-Wonderland tack.’ For good measure, he appended a footnote that quoted Alice in Lewis Carroll’s ‘Through the Looking Glass’: The question is whether you can make words mean so many different things.”
The Times further noted that “During oral arguments in a different lower-court challenge, Judge Henry Hudson of Federal District Court in Richmond, Va., was perhaps even more blunt about the rhetorical distance between Mr. Obama and his Justice Department. Mr. Obama, in a 2009 interview with ABC News, had said the insurance mandate is ‘absolutely not a tax increase.’ ‘Let’s characterize it correctly,’ Judge Hudson remarked. ‘They denied it was a tax. The president denied it. Was he trying to deceive the people?’”
Needless to say, we look forward to the Court resolving this issue.
2. To address the jurisdictional issue so as to leave no doubt as to the legitimacy of the final decision.
Tuesday is the day most of the country has been waiting for since the President’s health care law was signed into law more than two years ago: oral argument on the constitutionality of the federal mandate that nearly every American purchase a government-approved and regulated insurance policy.
Just how vast is Congress’s authority under its Commerce powers? Will the Court establish a limit to what Congress can mandate, or can Congress require us to eat broccoli and buy GM cars? And during argument, will the Justices reveal where they come down on this issue? Stay tuned.
Diane Cohen is a senior attorney for the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation.
Supreme Court of the United States: Audio from Monday’s Oral Argument
New York Times: Arguing That the Health Mandate Is Not a Tax, Except When It Is