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Supreme Court Justices Express Skepticism of Claim that Health Care Mandate is a Tax

2 min readBy: Joseph Bishop-Henchman

Today will be the second of three days of oral argument in the U.S. Supreme Court over the constitutionality of the health care law (PPACA or “Obamacare”). Yesterday, the Court considered whether the Anti-Injunction Act applies. That law prohibits legal challenges to taxA tax is a mandatory payment or charge collected by local, state, and national governments from individuals or businesses to cover the costs of general government services, goods, and activities. es until they are collected, and if it applies here, it means that the health care law’s individual mandate cannot be challenged until 2014 when it is first assessed.

While I have not reviewed the transcript of yesterday’s argument (I’m preparing for congressional testimony on the topic this Thursday at 9:00 AM to the House Ways & Means Committee’s Health Subcommittee), others report that the justices were for the most part skeptical of the notion that the individual mandate is a tax and thus falls under the Anti-Injunction Act, and that this skepticism was across-the-board. Reason posted a video summarizing this which I include below.

Our brief in the case argues that the individual mandate is not a tax. This is important because the Government must point to some constitutional power that justifies the mandate to purchase health insurance. Their primary argument is the power to regulate interstate commerce, but secondarily they argue their power to impose taxes. We authored our brief in the case to refute the government’s mischaracterization of the individual mandate as a tax, to explain why the definition they propose is unworkable, and to warn that an adverse ruling on this point jeopardizes important taxpayer protections and well-defined caselaw in nearly every state.

It’s refreshing to hear that the justices have already expressed skepticism of the Government’s contention that the mandate is a tax. (I should note, though, that the Government chose to make the acrobatic claim that the mandate is not a tax for purposes of the Anti-Injunction Act, but that it is a tax for purposes of the Constitution.)