Today was a big day. This morning, the Supreme Court began oral arguments over the constitutionality of ObamaCare. You can preview those arguments and see how the law will affect Illinois by clicking here. While the most important questions will be heard tomorrow and Wednesday, today's argument was notable because the Justices seemed in general agreement that they should rule on the case now, instead of punting the issue until 2015 or beyond.
This morning's argument primarily focused on whether the Anti-Injunction Act (AIA), which says you can't challenge a tax unless you've paid it, applies to the individual mandate. If the AIA applies to the mandate, the Supreme Court would not be able to rule on the issue until the mandate went into effect and someone was forced to pay the penalty. But the Justices seemed skeptical of this argument.
Justices Breyer, Ginsburg and Sotomayor, as well as several of the conservative Justices, expressed doubt that the mandate was actually a tax. In questioning the lawyers for each side, the Justices made several pointed comments that Congress did not label it a tax, that it isn't a revenue-raising measure and that they specifically removed it from the taxing provisions of the Internal Revenue Code. At one point, Justice Breyer chided the Obama administration's lawyer for continuing to call it a tax, when it's really a penalty.
This can't be good news for the Obama administration, who will be spending much of tomorrow arguing that the mandate is constitutional under the Tax Clause. If the taxing power argument is closed to them, Obama's lawyers will need to spend more time tomorrow convincing the Court that the decision to buy or not buy a certain product really is an "economic activity" and that the Court can uphold the law without creating a slippery slope of unlimited federal power.
Nobody knows how the Justices will eventually rule on the many issues they're presented. Even those who seem skeptical of the tax argument could change their mind, or could ultimately uphold the law on other grounds. The arguments tomorrow and Wednesday will be important, so we'll continue to track them closely and provide you with updates throughout. You can hear the audio or read the transcript for today's arguments on the Supreme Court's website.
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