I don’t understand why the media and everyone who reads it thought the Anti-Injunction Act phase of the Supreme Court oral arguments over Obamacare was silly and technical. Because if the predicate for holding that the Anti-Injunction Act applies is met (the case isn’t ripe because you can’t complain about a tax not yet collected), not only does that mean that the case isn’t ripe: it also means the tax penalty, formerly known as the “mandate,” is constitutional, just like every other tax penalty. Which isn’t an arcane “technicality” at all, since it decides the core issue of the case. If I were Kennedy or Roberts, I’d say that, and then say in dicta “and it’s hard to see how such a tax penalty, any more than any other tax penalty, could possibly be unconstitutional should the case come before us when it is ripe.”
Consider this parlay [ht Slate] with Justice Kagan in oral argument: “Suppose a person does not purchase insurance … pays the penalty instead, and that person finds herself in a position where she is asked the question, ‘have you ever violated any federal law,’ would that person have violated a federal law?” Solicitor General Don Verrili says in reply, “If they pay the tax, then they are in compliance with the law.” Which sounds exactly right to me.
Personally I think this is the right analysis. But I would also think it would be a smart move for any Justice uncomfortable with transforming our commerce clause jurisprudence (one way or another) overnight, as any other approach would necessarily do. A “conservative” (in the dictionary sense of the word) would do it. The question is: how many conservatives on the court are there? One? Two? We shall see.
Update: Apparently the Supreme Court more of less agrees with me. “Our precedent demonstrates that Congress had the power to impose the exaction in Section 5000A under the taxing power, and that Section 5000A need not be read to do more than impose a tax. This is sufficient to sustain it.”
The majority of twenty-one top law professors told reporters at Bloomberg that it would be overturned. The Poseidonian did not receive a query from Bloomberg.
Of course, the Court did not hold that it was a tax for Anti-Injunction Act purposes, but it did hold that it was authorized as a tax penalty. Apart from that, though it does appear that Roberts’ commitment to judicial restraint was what guided him, he was obviously not motivated by a desire to avoid impact on Commerce Clause jurisprudence, since he joined with the dissenters in rejecting the government’s argument that the mandate was authorized by the Commerce Clause.