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Supreme Justices’ Questions: Court Unlikely to Postpone Ruling on Individual Mandate

The Contemplation of Justice, Supreme Court Building (photo: UpstateNYer)

The audio of the first day of oral arguments at the Supreme Court on the Affordable Care Act can be found here, and a transcript here. As I noted earlier, the arguments today specifically focused on whether the penalty for the individual mandate represented a tax. If it does, then the Anti-Injunction Act of 1867 can be invoked, which would disallow anyone to sue over the mandate until the tax is actually levied, in 2015.

But as per the first impressions that leaked out of the Court, the transcripts show that the justices didn’t really buy the argument that the mandate is a tax. Whether or not you think that the Court should be more restrained and let the other two branches play out the policy, they have to base that on something in the law. And the arguments today didn’t move the Justices. Here’s an example. In this section, Justice Kagan questions Robert Long, the court-appointed attorney brought in to argue for the applicability of the Anti-Injunction Act (neither side of the broader case agrees with the argument for applicability, oddly enough), and makes the clearest case against viewing the mandate as a tax:

JUSTICE KAGAN: But, Mr. Long, aren’t you trying to rewrite the statute in a way? The statute has two sections. One is the you have to have insurance section and the other is the sanction. The statute has two different sets of exceptions corresponding to those two different sections. You are trying to suggest that the statute says: Well, it’s your choice; either buy insurance or pay a — or pay a fee. But that’s not the way the statute reads. And Congress, it must be supposed, you know, made a decision that that shouldn’t be the way the statute reads, that it should instead be a regulatory command and a penalty attached to that command.

I think that’s a pretty clear-cut reading. The statute needs to be read in a very particular way in order for the mandate penalty to be seen as solely a tax. The Administration tripped themselves up on this by alternately calling the mandate penalty a tax, and then not. In fact, Justices Alito and Breyer jumped on that today (the Administration wants to keep alive the idea of a tax penalty because that makes constitutionality much easier, as Congress has clear ability to tax). But legislative language takes precedent here, and as Justice Kagan says, the language doesn’t go the way Robert Long wants it to go.

Justice Scalia agreed with Kagan, saying that the language doesn’t clearly identify the penalty as a tax, and there’s your ballgame. Justice Breyer added, “Congress has nowhere used the word tax. What it says is penalty […] It’s collected in the same manner as a tax. But that doesn’t automatically make it a tax.”

I think this will just go down in flames. In all likelihood, we’re going to get a ruling on the merits this June. The path of least resistance may be to postpone a ruling and let things play out. But that’s not the path the law allows, according to the Court.

As for what that ruling on the merits will be, a selection of law clerks for the Justices believe the mandate will be upheld.

FDL’s Jon Walker has similar reactions from other observers.

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David Dayen

David Dayen