Yesterday, the Supreme Court heard arguments over whether or not the federal tax Anti-Injunction Act (TAIA) prevents the Court from deciding on the constitutionality of the individual mandate until after the law takes effect in 2014 (here is my preview of the TAIA arguments, and here is Hadley’s roundup of yesterday’s proceedings).
After listening to the audio recording from yesterday’s oral argument, I think it is highly unlikely that the Court will decide that the federal tax Anti-Injunction Act applies to the individual mandate. Both the federal government and the challengers agree (albeit for different reasons) that the TAIA does not apply to the individual mandate and penalties, so the Court appointed Attorney Robert Long to argue that the TAIA applies and therefore prevents them from deciding on the issue at this time. Nevertheless, the justices were openly skeptical of his position.
The Court was certainly right to hear arguments on the TAIA’s application to the individual mandate, especially after the 4th Circuit Court of Appeals found that the TAIA prevented them from deciding on the constitutionality of individual mandate until after that provision of Obamacare is implemented. But I do not think that they will use TAIA as an excuse to delay a decision on the individual mandate. I do not expect any grand pronouncements on the nature of the TAIA to be either a jurisdictional or “claims processing” law. Instead, I predict that the Supreme Court will follow the lead of every other court (besides the 4th Circuit Court of Appeals) that addressed the application of the TAIA to the individual mandate, and will find that it does not apply, because the penalty for not purchasing insurance is a penalty, not a tax levied for the purpose of raising revenue.
The federal government, the states, and the American public are all looking to the Supreme Court to resolve the constitutionality of the individual mandate this year, and I believe the justices showed us yesterday that they are ready to do so.