The first 90 minutes of the oral arguments in the Supreme Court's review of Obamacare are over and court watchers are already identifying the justices who look eager to rule on the merits of the case instead of throwing it out on a technicality. The technicality in this case is the Anti-Injunction Act. which prohibits citizens from challenging taxes in court before they actually go into effect. (Since health care reform's individual mandate hasn't gone into effect, some lawyers say the law can't be challenged until 2015.) But Antonin Scalia, Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan appeared ready to blow past the technicality while other justices such as John Roberts and Anthony Kennedy were less outspoken.
The justices have consistently resisted efforts to televise their hearings but you can listen to the audio here. In our attempt to give you the next best thing, these are the justices court experts say appeared skeptical of the Anti-Injunction Act today and appear eager to weigh the case on its merits.
Antonin Scalia Right out of the gates, Scalia threw a wet rag on the act, saying the individual mandage has never clearly been identified as a tax in the health care law. In the actual language of the Affordable Care Act, the mandate is described as a backstop penalty, not a revenue-raising mechanism. “I find it hard to think that this is clear.” He added that for the bill to be considered a tax, the law must come right out and describe it as such. "We had a principle that ousters of jurisdiction are ... narrowly construed."
Stephen Breyer Jumping on the bandwagon, Breyer made a similar point to Scalia's, saying “Congress has nowhere used the word tax. What it says is penalty" to describe the individual mandate. He added, “It’s collected in the same manner as a tax. But that doesn’t automatically make it a tax.” Getting into specifics about the Affordable Care Act, he said the bill “doesn’t use the word tax once, except as a collection device.”
Ruth Bader Ginsburg Also making no bones about it, Ginsburg went to the heart of what would make the individual mandate something one could construe as a a tax. “This is not a revenue-raising measure,” she said. Thinking long term about the purpose the mandate would serve once implemented, she said “because if it is successful, nobody will pay the penalty, and there will be no revenue to raise.”
Sonia Sotomayor Speaking to the counsel given the job of defending the Anti-Injunction Act, Sotomayor expressed an interest early on about how this decision could affect future cases. "What is the parade of horribles that you see occurring if we call this a mandatory claim processing rule? What kinds of cases do you imagine that courts will reach?" she asked. But counsel wasn't able to scare her. Noting the language in the bill, she said flatly: "The Congress is not denominating it as a tax; it's denominating it as a penalty."
Elena Kagan As Sahil Kapur at Talking Points Memo observerved, Kagan "questioned the limits and exceptions under the Anti-Injunction Act [and] pressed the counsel tasked with defending the AIA argument to cite where it’s clear in the statute that Congress intended for the mandate to be a tax." Speaking rather pointedly, Kagan said "Mr. Long, aren't you trying to rewrite the statute in a way?" She goes on to dissect the way he's reading the AIA language. "You are trying to suggest that the statute says: Well, it's your choice; either buy insurance or pay a -- or pay a fee. But that's not the way the statute reads."
All told, Politico's Jennifer Haberkorn, Kate Nocera and Jason Millman speak to a number of experts who say these reactions show the justices are ready to do away with the technicality. “We feel we had a very favorable vigorous argument regarding that today regarding that, I feel that they are going to move forward,” Florida Attorney General Pam Bondi said. "Karen Harned, a lawyer for the National Federation of Independent Business — one of the groups challenging the health care law — said the justices showed 'a significant amount of skepticism' about the argument that the Anti-Injunction Act would prohibit the court from reaching the merits of the case now."