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March 26, 2012

Justices Seem to Signal They Will Not Punt On ObamaCare, But Will Rule On Its Constitutionality

An "obscure nineteenth century" statute, the Anti-Injunction Act, states that a tax-levying bill cannot be challenged until it actually begins levying taxes. As one lawyer puts it, it's a "pay now, litigate later" law. At least as far as taxes.

So there has been worry that the Supreme Court would seize upon this bill in order to punt a decision on ObamaCare until 2014.

But via FoxBusiness, the justices seemed skeptical of its relevance:

The US Supreme Court ended the first of three days of oral arguments on President Barack Obama's health care law Monday, with most justices signaling an obscure nineteenth century law will not stop them from ruling on its constitutionality later this summer.

I don't put a lot of stock in "signalling" like that, because justices sometimes beat up on the side who they are inclined to agree with -- testing the position they lean towards, seeing if it can stand up to scrutiny. Plus, it might look a lot different in the written briefs.

NPR has a transcript of the discussion, but it's very technical and not what most people think of when they think of Major Theme Constitutional Law. (This is code for "I have no idea about the doctrines they're referencing.")

Here's a snippet where Breyer, who actually sides with the argument on the first hurdle (jurisdiction), nevertheless wonders if the law's provisions about "taxes" apply to ObamaCare, since ObamaCare won't call them "taxes," but instead terms them "penalties."

Just a preview of what we'll be seeing much more of, with a Clown Nose On Clown Nose Off argument as to whether this is a "tax" or nor. It's a "tax" when Obama needs it to be a not a tax when he needs it not to be.


USTICE BREYER: I just don't want you to lose the second half of your argument. And we have spent all the time so far on jurisdiction. And I accept, pretty much, I'm probably leaning in your favor on jurisdiction, but where I see the problem is in the second part, because the second part says "restraining the assessment or collection of any tax."

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 —

MR. LONG: Right.

JUSTICE BREYER: — and this is not attached to a tax. It is attached to a health care requirement.

MR. LONG: Right.

JUSTICE BREYER: — so why does it fall within that word?

MR. LONG: Well, I mean, the first point is — our initial submission is you don't have to determine that this is a tax in order to find that the Anti-Injunction Act applies, because Congress very specifically said that it shall be assessed and collected in the same manner as a tax, even if it's a tax penalty and not a tax. So that's one —

JUSTICE BREYER: But that doesn't mean the AIA applies. I mean — and then they provide some exceptions, but it doesn't mean the AIA applies.

It says "in the same manner as." It is then attached to chapter 68, when that — it that references that as "being the manner of." Well, that it's being applied — or if it's being collected in the same manner as a tax doesn't automatically make it a tax, particularly since the reasons for the AIA are to prevent interference with revenue sources. And here, an advance attack on this does not interfere with the collection of revenues.

I mean, that's — you have read the arguments, as have I. But I would like to know what you say succinctly in response to those arguments.

MR. LONG: So specifically on the argument that it — it is actually a tax, even setting aside the point that it should be assessed and collected in the same manner as a tax.

The Anti-Injunction Act uses the term "tax"; it doesn't define it. Somewhat to my surprise, "tax" is not defined anywhere in the Internal Revenue Code. In about the time that Congress passed the Anti-Injunction Act, tax had a very broad definition. It's broad enough to include this exaction, which is codified in the Internal Revenue Code. It's part of the taxpayers' annual income tax return. The amount of the liability and whether you owe the liability is based in part on your income. It's assessed and collected by the IRS.

Thanks to joncelli.

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posted by Ace at 02:03 PM

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