The Supreme Court kicked off the first day of arguments in the case against the Affordable Care Act this morning -- it's the first three-day hearing in 45 years -- but today was arguably the least interesting day. At issue was not the individual mandate that conservatives loved until President Obama decided he agreed with them, but rather, an 1867 law about taxes called the Anti-Injunction Act.
The underlying concept is pretty straightforward: before a tax can be challenged in court, it has to be collected first. As this relates to "Obamacare," the question is whether the high court should even hear the case: if the health care mandate is enforced through a tax penalty, and that tax won't be collected until 2014 at the earliest, then it's possible that the Anti-Injunction Act should delay the proceedings.
At least, that was the issue before the justices today. Is the mandate provision a "tax"? And if it is, should the Supreme Court punt the case for a few years? Jonathan Cohn, after hearing the arguments in the chamber, reported that the justices seemed unlikely to push this off until 2014.
To be clear, the Court could find that the mandate was not a tax, for the purposes of the anti-injunction act, but that it is a tax, for purposes of the mandate's constitutionality. In fact, that's what the administration has been arguing.
Neither Breyer nor Ginsburg made clear how they thought about that. But one of their conservative colleagues, Justice Samuel Alito, expressed some skepticism when he put a question directly to Don Verrilli, solicitor general: "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 said, no, although he argued that other precedents suggested the government's reading was correct.
After the hearing, at least one attorney who was present for oral argument agreed that the justices seemed to be telegraphing skepticism of the tax argument. "Several asked questions that made it clear they were going to give the government a workout tomorrow on whether the mandate is a tax," said Elizabeth Wydra, chief counsel to the Constitutional Accountability Center, who has filed an amicus belief on behalf of state legislators who support the law.
Assuming the justices are unmoved by Anti-Injunction Act concerns, today will effectively serve as a speed-bump in advance of tomorrow's arguments over the constitutionality of the mandate itself.
To hear today's oral arguments in their entirety, the Supreme Court released the audio recordings of the proceedings, and they're available in this clip: