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What Justices Said on ObamaCare Day 1

By Matthew Clark1332801721000

Today, the Supreme Court heard oral arguments on ObamaCare related to the Anti-Injunction Act (AIA). Essentially the question before the Court today was whether it could even decide the case now or would be forced to wait until all the provisions of the law went into effect.

Based on today’s oral arguments the court appeared to wrestle with three possible conclusions: 1) the Anti-injunction Act did not apply because ObamaCare is not a tax, and thus it could hear the case; 2) the AIA applies, but it is not jurisdictional – in-other-words, as Justice Alito suggested, “it can be waived,” which would allow the Court to hear the case; or 3) the AIA applies and is jurisdictional, preventing the Court from determining the case at the present time.

Justice Breyer immediately got to the heart of the matter:

Now, here, Congress has nowhere used the word "tax." What it says is penalty. Moreover, this is not in the Internal Revenue Code "but for purposes of collection."

And so why is this a tax? And I know you point to certain sentences that talk about taxes within the code . . . and this is not attached to a tax. It is attached to a health care requirement.

Justice Ginsburg joined in with Justice Breyer and Justice Scalia, who also voiced skepticism that the AIA is at all applicable in this case. Justice Ginsburg stated:

[T]he Tax Injunction Act is modeled on the Anti-Injunction Act, and, under the Tax Injunction Act, what can't be enjoined is an assessment for the purpose of raising revenue. The Tax Injunction Act does not apply to penalties that are designed to induce compliance with the law rather than to raise revenue. And this is not a revenue-raising measure, because, if it's successful, they won't -- nobody will pay the penalty and there will be no revenue to raise.

Justice Kagan suggested that ObamaCare contains a penalty, not a tax, and that Congress intended to impose “a regulatory command and a penalty attached to that command.”

While as Jay Sekulow, ACLJ Chief Counsel, noted, you can never predict the Court’s outcome in a case, it appears that the AIA will not be a bar to the Court’s consideration of the merits of the case.

Though, the Justices did not give any indication of their opinion of the merits of the case, there were a few interesting moments in an otherwise dry – even by Supreme Court standards – hearing.

Justice Alito pointed out to the federal government that “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.”

Justice Kagan also pointed out the paradox of the government’s argument, asking:

[S]uppose 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?

This was followed by an interesting exchange where the federal government said that the proper answer to that question is “no,” proceeding to refer to the penalty as a “tax.” When pressed by Justice Breyer on why he just called it a tax, the Solicitor General called it a “tax penalty,” and Justice Breyer again corrected him, “The penalty.” While the exchange caused an eruption of laughter in the courtroom, it again underscores a problem that the federal government has had since the very beginning – an inability to consistently label provisions of ObamaCare. It is this inconsistency that may pose a problem for the federal government and ObamaCare.

Tomorrow, the Court will hear oral arguments on the linchpin of ObamaCare – the individual mandate.

You can listen to today’s oral argument here or read the transcript here. You can learn more about the ACLJ’s legal analysis of the AIA issue here.

Watch Jay Sekulow’s analysis of today’s oral arguments on Fox News here. We will continue to keep you informed as the as each day’s oral arguments progress.

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