Hearing audio clips from the case before the Supreme Court arguments on Obamacare has been encouraging. Justices Roberts, Scalia, and Kennedy have asked key questions of Solicitor General Donald Verilli, who has had an extremely tough time making valid arguments. Part of the confusion arises because of the Obama administration’s argument that the power to enforce the individual mandate is rooted in Congress’ taxing power — but that the mechanism itself is designed to be a penalty, not a revenue-generating policy.
Even U.S. Solicitor General Donald Verrilli, seemed confused; using the phrase “tax penalty” multiple times to describe the individual mandate’s backstop. He portrayed the fee as a penalty by design, but one that functions as a tax because it’s collected through the tax code. This prompted Justice Samuel Alito to comment, “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,” causing a few moments of laughter during the 90 minutes of argument Monday.
The comment by Justice Scalia underlines the song and dance routine that the Obama White House is playing in its argument; and just how badly written the Obamacare legislation actually is. On one hand, Obama’s administrations claims the backstop is not a tax, because that could subject it to the Anti-Injunction Act; while on the other, they claim that the power to impose a penalty derives from Congress’ broad taxing power. That’s in part because calling it a tax makes defending the individual mandate a bit easier because Congress’ power to levy taxes is less in question than its power to force people to do things.
Even Obama appointed Justice Elena Kagan (who should have recused herself due to her advisory role to the Obama administration in formulating the Obamacare legislation) asked whether refusing to buy insurance would constitute breaking the law. Verrilli responded by saying he would argue that if people “pay the tax, then they are in compliance with the law.” This comment caught the attention of Justice Stephen Breyer.
“Why do you keep saying tax?” Breyer asked, causing a few more laughs.
The justices, particularly the four Democratic-appointees, and Justice Antonin Scalia, appear very skeptical that this “fine” constitutes a “tax,” which would then make it a penalty imposed for not complying with the law. This would make the Individual Mandate an unconsitutional abuse of congressional power. By forcing individuals into financial contracts for services they do not want to purchase or face a government imposed penalty, the Obama administration is violating several Constitutional rights. You would think liberals, ever so willing and ready to defend a woman’s right to choose … would also be lined up to defend a citizen’s right to choose and working to defeat Obamacare. Ah well … just more of that selective “moral outrage!”
Anyway, it is too early to say, but this does not bode well for Obamacare.