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Obamacare on Trial: Day One

7:20 PM, Mar 26, 2012 • By ADAM J. WHITE
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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?  

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