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Justices Skeptical That Health Care Mandate Is A ‘Tax’

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The Supreme Court kicked off oral arguments over President Obama's health care law Monday by dedicating 90 minutes to the one issue on which the White House and the Republican challengers agree: The justices should hand down a speedy ruling on the constitutionality of the law this summer, rather than punt it to 2015 or beyond.

Lawyers for the Obama Justice Department and for the 26 Republican-led states challenging the law agreed that an old statute called the Anti-Injunction Act — which forbids people from challenging taxes in court unless they've already been assessed by the government — does not apply in this case. The Supreme Court enlisted outside counsel to make the opposite case.

The justices appeared broadly skeptical that the law's fine imposed on Americans who fail to carry health insurance qualifies as a "tax."

Justice Antonin Scalia voiced this skepticism early, pointing out that in order for the Anti-Injunction Act to be triggered, the statute would need to clearly identify the penalty as a tax, which it does not. "Unless it's clear, courts are not deprived of jurisdiction, and I find it hard to think that this is clear," Scalia said.

The Affordable Care Act describes the fine not as a revenue-raising mechanism but as a backstop penalty.

"Congress has nowhere used the word tax. What it says is penalty," said Justice Stephen Breyer. "It's collected in the same manner as a tax. But that doesn't automatically make it a tax." The law, he added, "doesn't use the word tax once, except as a collection device."

Obama-appointed Justices Sonia Sotomayor and Elena Kagan questioned the limits and exceptions under the Anti-Injunction Act. They pressed the counsel tasked with defending the AIA argument, Robert Long, to cite where the Affordable Care Act statute suggests that Congress intended for the mandate to be a tax.

Justice Ruth Bader Ginsburg seemed clearer in her view. "This is not a revenue-raising measure," she said, "because if it is successful, nobody will pay the penalty, and there will be no revenue to raise."

The justices called on the lawyers for the White House and the Republicans to make the case that the Supreme Court has the requisite jurisdiction. Chief Justice John Roberts and Justices Samuel Alito and Anthony Kennedy were less vocal than the liberal-leaning justices. Justice Clarence Thomas, as expected, did not speak.

Notably, Roberts — who some court watchers believe may want to punt the ruling beyond an election year, to shield the Supreme Court from political attacks — only asked a handful of questions and did not seem to indicate that he believes the mandate is a tax.

"It's a command," Roberts said at one point. "A mandate is a command."

http://tpmdc.talking...tax.php?ref=fpa

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I wouldn't read too much either way into the Justices' statements and questions. Justice Breyer especially likes to take the arguments into the weeds, as does Justice Scalia at times. Look to Justices Kennedy and Roberts to ask pertinent questions and try to get the discussion back on track.

Edited by ☼

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Was the tax angle really something the Obama Administration was arguing for? I'm confused as to why it was even brought up.

No, neither side was arguing this point. SCOTUS hired its own counsel to make this argument.

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Robert's probably wanted to kick it down the road, and see if Congress can make Obamacare either go away, or at least gut it in it's next session.

But the justices all seemed pretty hostile to the guy they hired. I think his name is Long. It sure didn't read as if they wanted to punt.

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But the justices all seemed pretty hostile to the guy they hired. I think his name is Long. It sure didn't read as if they wanted to punt.

Maybe just one justice was being the lone wolf. So much of what goes on behind the scenes of SCOTUS never gets told.

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Maybe just one justice was being the lone wolf. So much of what goes on behind the scenes of SCOTUS never gets told.

It reads like it was Alito.. he really did seem sympathetic to finding no jurisdiction under the AIA and delaying a decision till 2014/15.

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AJ, can you answer to this? According to the linked article Mike posted, it was the Obama Administration making the argument that it is a tax.

Catch-22. If it is a tax, it is enforceable, but the Administration still wants it to be called a penalty and not a tax on the middle class, for obvious political reasons.

The confusion arises because of the administration’s argument that the power to enforce the individual mandate is rooted in Congress’ taxing power — but that the mechanism itself is designed to be a penalty, not a revenue-generating policy.
Edited by ☼

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