The solicitor general had an interesting morning. He argued before the Supreme Court's nine justices that Obamacare's individual mandate isn't a "tax"—even though he'll argue tomorrow that the mandate is a "tax." And then the government's top litigator invoked the possibility of incompetent government litigators as a reason to reject an argument raised by the plaintiffs

Welcome to the Supreme Court's review of Obamacare. One day down, two more to go.

While the public is focused primarily on how the Court will determine the constitutionality of the mandate, that issue won't be considered until tomorrow. Today, the justices faced a preliminary question: does the Court have power to hear this case at all? Or is the case barred by the Anti-Injunction Act?

The Anti-Injunction Act, a federal law dating back to 1867, limits taxpayers' ability to use the federal courts to block federal income tax assessments. The Act states, "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person," except where specifically authorized by law. The upshot of that requirement, and the related laws, is that if a taxpayer wants to dispute a tax, then he must either file suit in the U.S. Tax Court, or pay the tax and sue for a refund in a U.S. District Court or the U.S. Court of Claims. In this case, the plaintiffs challenging Obamacare accepted neither of those options; rather than waiting a few years to receive income tax assessments enforcing the mandate, they preemptively filed suit in U.S. District Court. And so the question is, does the Anti-Injunction Act block the suit?

As it happens, the plaintiffs and the government are in rare agreement on this issue: both sides argue that the Act does not preclude the Court from hearing the lawsuit. (The government long ago took the opposite side invoking the Act as a bar against the suit, but later changed its mind.) But because the Court wants to make sure that this jurisdictional issue is fully aired and thoroughly argued, the justices appointed a veteran Supreme Court litigator to adopt this orphaned issue.

That lawyer, Robert Long, argued that the mandate is a "tax" for purposes of the Anti-Injunction Act (and thus this litigation must be dismissed), because the mandate is integrated into the tax code for purposes of collection. And even if the mandate is not itself a "tax," Long argued, Congress still wanted the Anti-Injunction Act to apply, because Obamacare provides that the penalty enforcing the individual mandate "shall be assessed and collected" by the treasury secretary "in the same manner as an assessable penalty under" the tax code.

But not a single justice seemed to agree that the Anti-Injunction Act bars this case. Instead, they seemed to agree that the suit can go forward, for one of two reasons:

First, Chief Justice Roberts seemed to conclude that even if the Anti-Injunction Act was intended to apply to this sort of suit, the government lawfully waived that requirement. (In legal parlance, this view is that the Act is not "jurisdictional.")

Second, Justices Breyer and Ginsburg seemed to conclude that the Act does not bar this type of suit anyway. That position would free the Court from having to decide whether the Act is waivable in all cases—although Justice Breyer strongly indicated his belief that the Act is not waivable.

It will be interesting to see which route the justices choose. On the one hand, the easiest decision, under existing case law, seems to be that the Anti-Injunction Act is waivable in all cases. But that would be a very broad decision, implicating all manner of tax disputes. The narrower option, therefore, would be to rule that Congress did not clearly intend the Anti-Injunction Act to bar this type of constitutional challenge to the Obamacare mandate, either because of the way it drafted the Anti-Injunction Act long ago or because of the way it drafted Obamacare two years ago.

Perhaps Justice Scalia found the easiest way out: At today’s oral argument, he invoked the general rule that Congress must speak clearly when trying to limit jurisdiction. That presumption in favor of judicial review could be decisive in a decision holding that the Anti-Injunction Act does not bar the challenge to Obamacare, given that Obamacare's provisions seem insufficiently clear on this issue.

As noted at the outset of this post, the solicitor general tried to thread a very fine needle in these arguments. He did not want to open the door to a broad ruling that the Anti-Injunction Act can be waived in any given case, because that would open the door to Justice Department lawyers inadvertently waiving the Act (i.e., by failing to invoke the Act) in future tax disputes. I am sure that the Justice Department's trial lawyers appreciated his vote of confidence! Justice Sotomayor was much more generous, noting that Solicitor General Donald Verrilli's argument "assumes the lack of competency of the government, which I don't..." (You can insert your own joke.)

Furthermore, the solicitor general had to argue that the word "tax," as used in the Anti-Injunction Act, has a different meaning than the word "tax" found in the Constitution. Again, tomorrow, he will argue that the individual mandate is constitutional even if it is not supported by the Commerce Clause and Necessary & Proper Clause, because it is a lawful exercise of Congress's power to "tax." In fairness to the solicitor general, this is a theoretically defensible argument: in reviewing jurisdiction, the Court must consider what the Anti-Injunction Act's framers meant by "tax"; in reviewing constitutionality, the Court must consider what the Founding Fathers meant by "tax." It's the sort of theoretical argument that only a law professor could love. In the real world, however, it's a bit tough to swallow. Justice Alito cut to the chase, in the Court's first question to the solicitor general:

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. Has the Court ever held that something that is a tax for purposes of the taxing power under the Constitution is not a tax under the Anti-Injunction Act?

This sort of legal hair-splitting might well cost the government a bit of credibility—not just today, but throughout this case, among any justices still undecided on the merits of the case. The government already has squandered much credibility by its duplicitous handling of the constitutional issues from the very beginning: President Obama told television audiences that the individual mandate isn't a tax; then his Justice Department argued in the lower courts that it was a tax, and therefore constitutional; then his Office of Management and Budget told Congress—just weeks ago—that it isn't a tax; and now his solicitor general will argue to the justices that it is a tax, for constitutional purposes (but not jurisdictional purpose). The justices surely know that they are about to decide the most significant structural constitutional issue in recent memory, if not decades. They will take the inquiry seriously—will they look kindly upon the administration's apparent frivolity?

I don't mean to mock the solicitor general here. He is admittedly one of the best Supreme Court advocates of our day; junior lawyers like me don't have much standing to criticize how he runs his cases. (Maybe Verrilli succeeds in proving F. Scott Fitzgerald’s old maxim: “The test of a first rate intelligence is the ability to hold two opposed ideas in the mind at the same time and still retain the ability to function.”) Still, it's hard not to wonder whether the Justice Department was too clever by half: Rather than worrying that future DOJ lawyers will accidentally waive the Anti-Injunction Act in run-of-the-mill tax cases, maybe the solicitor general should have showed confidence in his Justice Department and in his own constitutional arguments, and firmly called the Obamacare mandate a "tax"—just like he will tomorrow.

Speaking of tomorrow, the justices will reconvene in the morning for two more hours of argument on the big question: is the individual mandate constitutional?

As for today's arguments, the full transcript can find it here. The audio recording is available here. The indispensable SCOTUSblog has collected all of the briefs here.

Adam J. White is a lawyer in Washington, D.C.

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