I’m writing this as the first in a series of a few posts detailing my reactions to oral arguments in the Affordable Care Act cases. I am doing this mostly for myself as a way to preserve present observations for future posterity but please come along for the ride if you want!
I don’t have many from today’s session. We only saw 1 hour of argument regarding whether the Tax Anti-Injunction Act bars consideration of the Act until a ‘tax’ is collected for non-compliance.
Some quick thoughts:
• Nothing short of irony that the SG has to argue no tax for T-AIA purposes then turn around argue, ‘yes, tax’ for individual mandate purposes.
• A really fascinating discussion developed during the SG’s time about whether finding that the T-AIA isn’t a jurisdictional bar would allow federal courts to fashion equitable doctrines that would harm the US down the road in other tax-collection situations. Admittedly, it may be something that may only interest those who love Fed Courts issues.
• Justices all seem pretty eager to get to the merits.
• Bob Long did a yeoman’s job in his role as appointed amicus.
• Kennedy may be a crucial vote on the mandate provisions. And I’m genuinely not sure how he’ll come out on this.
Next we get to the juicy stuff that most people will be interested in: is the individual mandate a violation of the Commerce Clause? Before Raich I would have said ‘yes’ but now it’s a hard sell indeed. Not impossible to sell…just tough to sell. I’ll be back with thoughts on day 2 arguments after I’ve listened to them!
Full audio of oral arguments from day 1 here.
SCOTUSblog summarization here.