Via Fox News, two justices, Alito and Breyer, needled a top Obama lawyer for simultaneously calling the fine that will be paid under the law for not purchasing insurance a “penalty” and a “tax.”
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.
The narrow but important distinction created a communication challenge for the lawyer representing the Obama administration.
U.S. Solicitor General Donald Verrilli used the phrase “tax penalty” multiple times to describe the individual mandate’s backstop. He portrayed the fee as a penalty by design, but one that functions as a tax because it’s collected through the tax code.
“General Verrilli, 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,” said Justice Samuel Alito, in one of the few laugh lines throughout the 90 minutes of argument Monday.
The remark underscores the fine line the White House is walking in its argument. On one hand, it says the backstop is not a tax, because that could subject it to the Anti-Injunction Act — the focal point of Monday’s arguments — and delay a ruling to at least 2015. On the other, they claim that the power to impose a penalty derives from Congress’ broad taxing power. That’s in part because calling it a tax makes defending the mandate easier — Congress’ power to levy taxes is less in question than its power to require people to do things.
Justice Elena Kagan asked whether refusing to buy insurance would constitute breaking the law, to which Verrilli responded that if people “pay the tax, then they are in compliance with the law.” That caught the attention of Justice Stephen Breyer.
“Why do you keep saying tax?” Breyer interjected, to more laughs.
Via The Corner, Charles Krauthammer’s take on the first day of Supreme Court arguments in the legal challenge to ObamaCare:
The fact that the court has taken this and the fact that it’s allocating three days, which I think is the most for any case in half a century, [shows] they understand it represents a crossroads. And the argument of those against the bill is that if you can compel a citizen — under the individual mandate — to enter into a private contract with a private company, then there are no limits to what government can make a citizen do under the Commerce Clause.
And then there is a fundamental change in the nature of our social contract. It used to be — or at least we imagined ourselves [to be] — under a government of enumerated powers. Congress is allowed to do “x,” “y,” “z.” Everything outside of that is in the free area of the individual and the states. [But] if you allow this unlimited expansion of the Commerce Clause, then Congress and the president, the federal government, is all powerful. And then what is left is for the individual and for elements of civil society to carve out areas of autonomy.
That is a huge change in the nature of the social contract.
On how the Supreme Court will decide:
Like all the other issues in American life, it will depend on what side of the bed Justice Anthony Kennedy arises on that morning. He is the ultimate in swing votes.
Or, you could say: king.
A Gallup poll published Monday found that Americans overwhelmingly believe the “individual mandate” is unconstitutional.
They said so by a margin of 72% to 20% in a Gallup poll conducted Feb. 20-21, 2012. Americans on average are not lawyers, of course, but their views give an indication of the public’s general view on the case in front of the U.S. Supreme Court this week.