Tuesday, March 27, 2012

ObamaCare, Day One

I will be on  Charlie Sykes show this morning at 11:07 to discuss the constitutional challenges to ObamaCare.

Yesterday's arguments were a bit of a prelude, addressing a preliminary question, i.e., does the Tax Anti-Injunction Act require the Court to dismiss the challenge to the individual mandate? The law forbids injunctions against the imposition of a tax, requiring that the taxpayer pay it first and then bring a challenge.

But there are three ways in which the case could go forward. First, the Court might find that the Act is not jurisdictional, i.e., that the government can waive it as an obstacle to the case going forward. The government has done that here. Second, the Court could find an exception. Finally, it could conclude that the mandate is not a tax.

The latter point is why yesterday's argument may be something of a prelude. Several of the justices expressed skepticism that the mandate is a tax. That could have bearing on its constitutionality should the challenge proceed because one of the arguments advanced to uphold it is that it is within Congress' taxing power.

It's always dicey to read a lot into oral arguments. Sometimes Justices ask questions in the guise of a devil's advocate - challenging the lawyers to bolster - or address the weaknesses of - a position that they already hold. And there is, of course, the potential for substantial interaction between members of the Court following argument having an impact on positions.

Nevertheless, the consensus of observers regarding yesterday's argument is that it looks like the Court will take up the challenge to the mandate. That is today's topic. More later.

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