The big surprise at the Court today was that . . . there were no real surprises. The Court took up the question of whether the Anti-Injunction Act (AIA) prevents the Court from considering the challenge to Obamacare’s individual mandate. The AIA is an 1867 law which prevents a plaintiff from challenging a tax until they have paid the tax. (I sense your excitement, and that excitement was shared by the Court as well.) All eight justices who asked questions today seemed skeptical that the AIA should prevent them from hearing the case. And why shouldn’t they? After all, the Justice Department, the 26 states challenging the law, and the NFIB all agree that the AIA shouldn’t short-circuit the case. So why did they hear it? Most likely, because there was a circuit split. The Supreme Court gets over 10,000 requests per year to hear cases, and it grants review in about 80 cases. One of the surest ways to be one of those 80 is if the federal courts of appeal below have reached differing opinions on a question of federal law. That is what happened in the AIA, when one circuit found that the AIA blocked the challenge to the mandate, and every other court found that it didn’t.
But for those tea-leaf readers out there, Justice Alito offered a pointed question to the solicitor general foreshadowing the skepticism (if not hostility) that the Justice Department is likely to face from the Court given the administration’s flip-flopping on whether the penalty in Obamacare is a tax: “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.” The answer, of course, is that it isn’t a tax today, and it isn’t a tax tomorrow either.