ObamaCare on Trial, Day One: A Case of "Inartful Drafting By Congress"

Washington, D.C.—The Supreme Court kicked off the first of three days of oral arguments this morning on the constitutionality of the Patient Protection and Affordable Care Act (ACA) with a highly-technical—yet still frequently entertaining—90-minute set of arguments over whether the legal challenge to the ACA must be dismissed under the terms of the Anti-Injunction Act, a federal statute dating back to 1867 which reads in part: "No suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court."

In other words, under the Anti-Injunction Act you cannot challenge a federal tax in federal court until that tax has been assessed and paid. Does the legal penalty associated with the individual mandate's requirement that all Americans buy or secure health insurance count as a tax under this statute, even though Congress called it a penalty? If the answer is yes, then the legal challenge to the ACA will have to wait until 2015 when the tax/penalty is paid.

Judging by the questions and comments made by several of the justices today, it seems likely that the Supreme Court will allow the legal challenge to proceed. Justice Stephen Breyer, for instance, returned repeatedly to what he called the "overarching" issue: Namely, "Congress did not use that word, tax." Indeed, Congress specifically used the word penalty when laying out the terms of the individual mandate, not the word tax. President Barack Obama himself has also stressed that the individual mandate does not impose a tax. In response to attorney Robert Long's oral argument that the individual mandate's penalty is collected "in the same manner as" a tax," Breyer essentially responded that just because something is similar does not make it the same.

But it was Justice Sonia Sotomayor who perhaps best captured the day's central problem when at one point she suggested that the trouble originated with "inartful drafting by Congress." It's hard to argue with that.