Court to General Verrilli: Cut your Losses on Tax Arguments

by Carrie Severino

As I mentioned in my earlier post, today’s arguments signaled that the justices are open to grappling with the hard questions posed by the arguments on the merits of the health-care law tomorrow and won’t be looking to the Anti-Injunction Act as an easy out to avoid the tough issues the court will hear tomorrow and Wednesday.

One clear takeaway from today’s arguments is that the administration will be fighting an uphill battle when it tries to claim that the mandate penalty is constitutionally legitimate because it is a tax. Recall that this argument drew criticism from Judge Vinson at the district-court level as exhibiting an “Alice in Wonderland” approach to statutory interpretation, by claiming the penalty was not a tax when it was politically helpful, and then redefining the term to mean something entirely different when it helped their legal argument.

The Court seemed very cognizant of the needle Solicitor General Verrilli was trying to thread with his arguments, but unconvinced by his legal gymnastics. As Justice Alito reminded him, he had the challenge of arguing that the mandate penalty is not a tax today, and them coming back tomorrow to argue that it is a tax. Verrilli had to admit that there was no other statute that the Court has ever said was an exercise of the taxing power but didn’t fall under the Anti-Injunction Act’s definition of a tax. When the SG slipped later on and termed what today should have been a mere “penalty” a tax, Justice Breyer called him on it, drawing laughter from the observers in the courtroom.

The SG’s arguments also triggered incredulous laughs when he answered Justice Kagan’s query about whether the requirement to buy insurance was logically separate from the penalty, since some of the people subject to the mandate are not subject to the penalty, and vice versa.  She wanted to know whether someone required by law to purchase insurance, but exempted from the penalty, would be violating federal law by not getting insurance. General Verrilli answered they wouldn’t, effectively arguing that the statute’s own description of the mandate should be ignored when it conflicted with the penalty provision.

The Solicitor General enjoys significant respect by virtue of his position as chief advocate for the federal government, but his positions today seemed to strain credulity with most of the justices. Even two of the liberal justices, Ginsburg and Breyer, commented that the penalty was clearly not intended as a revenue-generating provision. It seems safe to assume that the government may not want to use up much of its valuable argument time tomorrow on what appears to be a losing argument. That leaves two arrows in their quiver: the Commerce Clause and the Necessary and Proper Clause. It remains to be seen whether the administration will have better luck convincing the Court that sweeping all Americans into a market based on probability alone is truly “good enough for government work,” or whether the Court will insist that the Constitution’s language be taken more seriously.

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