Excerpts from Monday’s Supreme Court arguments over whether legal challenges to President Barack Obama’s health care law are premature under the Anti-Injunction Act, which bars lawsuits against a tax until after the tax is paid:
Solicitor General Donald Verrilli: This case presents issues of great moment and the Anti-Injunction Act does not bar the Court’s consideration of those issues.
Robert A. Long: Somewhat to my surprise, “tax” is not defined anywhere in the Internal Revenue Code.
Justice Sonia Sotomayor: Assuming we find that this is not jurisdictional, what is the parade of horribles that you see occurring if we call this a mandatory claim processing rule? What kinds of cases do you imagine that courts will reach?
Justice Antonin Scalia: If it’s not jurisdictional, what’s going to happen is you are going to have an intelligent federal court deciding whether you are going to make an exception. And there will be no parade of horribles because all federal courts are intelligent.
Justice Stephen Breyer: What we want to do is get money from these people. Most of them get the money by buying the insurance and that will help pay. But if they don’t, they are going to pay this penalty, and that will help, too.
Justice Samuel Alito: 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?
Verrilli: No, Justice Alito, but the Court has held in the license tax cases that something can be a constitutional exercise of the taxing power whether or not it is called a tax. And that’s because the 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.
Justice Elena Kagan: Suppose a person does not purchase insurance, a person who is obligated to do so under the statute doesn’t do it, pays the penalty instead, and that person finds herself in a position where she is asked the question, have you ever violated any federal law, would that person have violated a federal law?
Verrilli: No. Our position is that person should give the answer “no.”
Justice Ruth Bader Ginsburg: There’s this category of people who are Medicaid eligible; Medicaid doesn’t cost them anything. Why would they resist enrolling?
Gregory Katsas: I don’t know, Justice Ginsburg. All I know is that the difference between current enrollees and people who could enroll but have not is, as I said, is a $600 million delta.
Roberts: Why would you have a requirement that is completely toothless? You know, buy insurance or else. Or else what? Or else nothing.
Katsas: Because Congress reasonably could think that at least some people will follow the law precisely because it is the law. And let me give you an example of one category of person that might be — the very poor, who are exempt from the penalty but subject to the mandate.
Katsas: The purpose of this lawsuit is to challenge a requirement — a federal requirement to buy health insurance. That requirement itself is not a tax. And for that reason alone, we think the Anti-Injunction Act doesn’t apply …
Chief Justice John Roberts: The whole point of the suit is to prevent the collection of penalties.
Katsas: Of taxes, Mr. Chief Justice.
Roberts: Well, prevent the collection of taxes. But the idea that the mandate is something separate from, whether you want to call it a penalty or tax, just doesn’t seem to make much sense.
Katsas: It’s entirely separate, and let me explain to you why.
Roberts: It’s a command. A mandate is a command. Now, if there is nothing behind the command, it’s sort of, well, what happens if you don’t follow the mandate? And the answer is nothing. It seems very artificial to separate the punishment from the crime.
Katsas: I’m not sure the answer is nothing, but even assuming it were nothing, it seems to me there is a difference between what the law requires and what enforcement consequences happen to you.
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