Supreme Court

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.

NEXT: Obamacare, Mandates and Regulatory Confusion: Reason-Rupe Poll Results with Emily Ekins

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  1. Mary Stack|12.12.09 @ 4:38PM|#

    Morris,You know what is worse than an asshole remark? A coward asshole who makes the remark anonymously.

    1. Yes I know all about the “cowardly”! I let the poor fat guy be my flak catcher for weeks!

      But god those cheekbones are fabulous!

    2. …things:

      ? Universal Koch pollution.
      ? Universal birth defects.
      ? Universal asthma.

      But not Universal health care for the victims. No. That’s bad [unprofitable].

      If we can privatize profits and socialize totally ignore costs, that’s my kind of accounting for personal responsibility.

      Pollution is more money in my pocket, personally. It’s your responsibility.


      1. ? Universal asthma.

        Asthma is caused by giving very young children antibiotic.

        Considering the sever drop in infant mortality rates since the invention of penicillin I have to say I welcome universal access to antibiotics.

        1. To be clear, research suggests that early antibiotic use INCREASES THE RISK of becoming Asthmatic, not that it is a specific cause.

          1. It explains why developed nations have higher instances of asthma then undeveloped nations.

            Which is what the original post was alluding to.

            Also it is the most likely cause vs say pollution, pesticides and eating too much sugar or whatever the left is blaming now a days.

            1. I have a child with asthma (though mostly grown out of it now) who has never been on antibiotics.

              1. In my kid’s case, it was dust mites. The allergy test showed it clear as day. I ripped out his bedroom carpet and put in the fake wood laminate flooring. Bagged his mattress, bought brand new pillows bagged them, got rid of the comforter and started using cotton blankets that were easier to clean and dry. Asthma went away. Now that he is an adult, it does not seem to bother him any anyway.

            2. Actually, there’s a good deal of research implicating acetaminophen given to children as being highly associated with asthma. Still, the actual “cause” is likely a variety of factors, including medicinal, environmental, and so forth.

  2. See, that’s Sotomayor trying to help the pro-ObamaCare argument along.

    “Inartful drafting” is what lawyers say when they are trying to convince you that even though the didn’t say “tax”, they meant tax, and so why don’t we all just agree its a tax and move on?

    1. Doesn’t all the discussion about how it wasn’t a tax before the law passed by principles (Congresscritters) kind of shoot this down? Granted, most of them weren’t under oath (although I believe this was reiterated under oath at the committee hearings), but still… Totally inadmissible?

    2. That is correct.

      RC Dean, next category, please.

      1. SPOOF

    3. When market fundamentalists are trying to convince you that even though the did say “RIGHT TO TAKE”, they didn’t meant TAKE, and so why don’t we all just agree Genocide is Freedom and move on?

      “[The Native Americans] didn’t have any rights to the land … Any white person who brought the element of civilization had THE RIGHT TO TAKE over this continent.”

      ~Ayn Rand, US Military Academy at West Point, March 6, 1974

      1. Since Ayn said it, go and ask her about it. Take a shovel.

      2. …to see you go back to just reposting your tired nonsense!

        1. and not to mention BORRRRING… oh wait, just did mention it.

          1. I WILL NOT BE IGNORED!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

    4. Even the Solicitor General called it a tax in this very argument, the point of which was to establish that the mandate is NOT a tax. The SCOTUS justices essentially asked him whether an “applicable individual” who refuses to get the required insurance has violated federal law. The SG’s response was no, there is no violation unless you fail to pay the “tax.” Breyer jumped to his defense, asking “why do you keep calling it a tax?” The SG’s response was essentially, “whoops, sorry, I mean the penalty.”

    5. this will be the new response from my students. Instead of saying that they meant to write x = 2 when they actually wrote z = 347, they can now just say their answer was inartfully drafted and i should give them credit anyway.

      1. “I took off 10 extra points for your ‘inartful drafting’. May the many-angled ones eat your soul slowly.”

        Wait, do you teach college? Don’t write that for kids.

        1. Of course I teach college. High school students are unacquainted with this “draft” concept.

  3. “Justice Sonia Sotomayor … suggested that the trouble originated with “inartful drafting by Congress.””

    Perhaps the “wise latina” might contribute something valuable after all!

    1. Doubtful. She had a number of interesting questions in MacDonald, then went and supported Chicago. She’s looking for holes in the other guy’s armor before supporting the tyrannous act.

      1. So is Kagan going to recuse herself from deciding a case involving a law she previously helped promote…?

      2. Sorry, you misunderstood me. The value is that she recognizes “inartful drafting”. Nothing more.

  4. Ah, yes. Yet another set of ad hoc “principles” that all good liberals will adopt when discussing the PPACA and promptly forget when considering other issues. This penalty must be a tax because we need it to be a tax in order to achieve the predetermined result.

    1. Look, it’s a penaltax, alright?

      1. Penal-taxes are an abhorrence, a blight on this land!

        *puffs pipe*

        Vagi-taxes, however, I could hear an argument for.

        1. Your homophonia is showing. Penal != penile.

          1. Hah! I know this game. The legislature will simply draw up a bill containing “penal” taxes, force it through Congress, and then claim inartful drafting so that they can begin taxing our penises once and for all!

            *puffs pipe*

            It’s really quite clever, you see.

  5. Of course it’s “inartful drafting”! How could it be otherwise?

    1. This could be a 9-0 decision when the Court’s wisest Latina calls the ACA such.

  6. Even calling it a tax does not keep it constitutional. You are forcing someone to buy a product from a private company simply because they are a citizen.

    1. I assume this applies to legal non-citizen residents also.

      1. I assume this applies to legal non-citizen residents also.

        I would assume so as well. I usally mean citizen to be anyone residing in the country bound by our laws.

    2. “The real innovation of our [agricultural] revolution wasn’t growing the food, it was locking it up. Your revolution would have ground to a halt without that feature. It would grind to a halt today without that feature. There’s only one way you can force people to accept an intolerable lifestyle. You have to lock up the food.”

      ~Daniel Quinn

      1. Agriculture was invented by someone other than hunter gatherers? Or did H/G develop agriculture and stick with it because it improved their lives?

        1. Norman: You say you are lying, but if everything you say is a lie, then you are telling the truth, but you cannot tell the truth because everything you say is a lie, but you lie… You tell the truth but you cannot for you lie… illogical! Illogical! Please explain! You are human. Only humans can explain their behavior! Please explain!

      2. What about locking up Botox? Do crows’ feet constitute an intolerable lifestyle?

        1. Do as I say, not as I do!!!!

      3. What this troll can’t seem to understand is that while hunter/gatherer societies can freely gambol about forest and plain, an agricultural society requires property rights.

        Nobody would invest time and resources into planting fields or raising animals without some assurance that they would be able to collect and benefit from the fruits of their labours. Property rights are just that assurance.

        Without property rights, anybody is free to hunt your livestock or gather your crops.


    3. Aha, thus the argument for the public option :).

    4. Even calling it a tax does not keep it constitutional. You are forcing someone to buy a product from a private company simply because they are a citizen.

      I am forced to have a mortgage. I don’t, so I pay extra tax.

      Why the hell didn’t they just make a tax deduction for having health insurance?

  7. Boy, do I love the fact that the last remaining vestiges of our freedom and of America as having a limited federal government now rest on one man. It makes me feel so gosh darn great about the future.

    Have a nice day everyone, and sleep well.

    1. That’s pretty much where I am on this.

  8. “inartful drafting by Congress.”

    The law, its promised benefits, its promised cost savings, its written design to wedge its way to sculpt a socialist future…

    I have to disagree completely…it is an artistic fiction and nothing else.

  9. I’m slowly making my way through the transcript. It is by turns interesting and confusing. But I thought this part was worth posting:

    Justice Ginsberg: The Tax Injunction Act does not apply to
    penalties that are designed to induce compliance with
    the law rather than to raise revenue. And this is not a
    revenue-raising measure, because, if it’s successful,
    they won’t — nobody will pay the penalty and there will
    be no revenue to raise.

    1. It is a straight-up tax and spending plan that merely happens to be entirely off-budget. Rather than raise taxes and then pay the insurance premiums directly, they’re forcing people to spend the money anyway and just cut out the middle man. Obama would of course have preferred to keep his middle-man role and collect all the revenue, but such a massive tax oncrease was politically impossible. And so a Wise Latina is going to rule that neither federal statutes nor the Constitution presents any bar to Obama’s enactment of an extra-Constitutional law that 6/10 people hate.

  10. “If you make less than $200,000 a year your taxes will go down”

    See- not a tax 😉

    1. They left out the part where hidden fees and penalties would necessarily skyrocket. Just an innocent omission.

  11. Is it too late for Sotomayor to recuse herself? She may want to hop out before this ends up 6-3 or 7-2 just to save a little face.

    1. 7-2, with the two being her and Kagan, would be so awesome my head would explode. Having only his two appointees supporting him would make the whole thing so transparently political and delicious!

      1. Nothing is ever that transparent with Obama.

      2. Based on the questions, Breyer and Ginsburg seem to have taken exception to the government’s position.

        Which leads me to this question: what does the combination of salty ham tears mixed with unicorn blood taste like?

        1. Better than bacon while getting a blowjob.

          1. I dunno, gettin B&B is damn awesome!

    2. You really think it will go that drastic? Almost everything I’ve read seems to expect it to be a close 5-4 ruling.

      1. One thing to keep in mind is that the Court, whatever its myriad other failings, at times is capable of taking a longer view. Since there’s every chance that the nasty, icky Republicans (who, in fact, are nasty and icky, though no more so than their counterparts) will be in power in 2013 (or later, if not then), upholding the mandate could create tremendous precedent for God knows what. The liberal justices may well be scared of what’s been unleashed here, keeping the rotating system in mind.

        Maybe not, but don’t be surprised if that logic sways Breyer and Ginsburg.

      2. Jeffery Toobin, CNN legal analyst expects a 5-4 for the mandate as a worst-case result, he think 8-1 is not out of the question. Why? Because all the Democratic appointed justices will automatically vote for Obama and the rest might be reasoned with. (In other words, he says the Democrat appointed justices don’t use judicial reasoning, they just vote the party line. Those other bastards actually use reason and logic and thought to reach their decisions and are therefore harder to predict.)

        Interestingly, he sees Thomas as the lone holdout. But aren’t Obama and Thomas both black? Don’t all blacks think and act alike? Isn’t that why CNN regularly goes to Jessie Jackson or Al Sharpton when they need somebody to give a “black” viewpoint on the news? How can Obama and Thomas have a difference of opinion?

  12. Anyone know if the fact parties must enter into a contract willingly is an argument that will be made against O’Care? Seems to me the simplest and most well-founded of arguments.

    1. George Will made that argument in today’s Columbus Dispatch. My fear is that they’ll cite the Hooven decision, where the Supremes clarified Article 1, Section 8: “To exercise exclusive legislation in all Cases whatsoever, over such District (not exceeding ten miles square)…
      So, if you’re a United States Citizen, Congress can do whatever the fuck it wants to do with you. Tricky, how they got us all to declare that on our Socialist Security applications. Yet another “voluntary” contract.

      1. I believe this is tinfoil hattery, and people without SSNs still have to comply with the mandate, just like how they have to file taxes.

  13. But….but…but my local paper’s editorial jerk-offs are all writing big, dismissive pieces about how it’s not really a bad law after all and so on, and so on.

    Of course they all avoid the gaping lies that were implemented to push it through, and the facts regarding better coverage not equalling better health.

    It’s like they’re just blindly accepting the prez and believing the name of the law alone ensures that it’s going to mean nothing but a healthy, blissful utopia.


    1. It’s all about intentions, Tolly. See: the war on poverty, social security, etc.

      1. OTOH, I’m starting to understand just how healthcare got so f*cked up in the first place.

        1 – Pass a law that ignores simple supply/demand/economics to try and arrive at feel-good solution to the unfairness of life.

        2 – Act amazed when solution balloons out of control and fails to achieve desired effect.

        3 – Repeat, ad infinitum…

        1. #2 is entirely the fault of the free market, greedy insurance companies, and evil anti-union employers.

          It’s never the fault of greedy doctors, Medicare fraud, or inartfully drafted legislation.

          1. Doctors are allowed to be greedy in my book if it means they are recouping their years of med school and the time and effort to profit from intense specialization in a particular field.

            What’s amusing is when the govt asks them to perform the same service, for less money, while still requiring them to be liable to insane lawsuits by a slovenly, sue-happy population.

            1. Doctors greedily join the AMA and engage in regulatory capture to ensure nobody else can heal the sick without first coughing up hundreds of thousands of dollars in tribute to (often state-run) educational institutions.

              Generally speaking, addressing the issue of doctor pay and the overqualification of people who provide medical care is a forbidden topic in the public discourse about the cost of medical care. Even though it’s about the single highest factor in the cost of care.

              1. Would you care to provide some sources for your gross assertions? Less than 30% of physicians, for example, join the AMA the last time I checked. I guess only 30% of us are greedy? Or do the rest of us engage in passive greed, or greed by omission? As opposed to your magnanimous, generous self?

        2. You’re just now starting to understand this?

          Oh well, better late than never. Welcome aboard.

        3. I take it you are not familiar with government? Everything costs twice as much as they say it will, accomplishes half what they say it will, takes twice as long to implement as they say it will, and fails spectacularly.

          The problem is always the same – government wasn’t given enough power and enough money to do the job. The solution is always the same – give government more power and more money.

  14. “inartful drafting by Congress.”

    Understatement of the century.

  15. Breyer essentially responded that just because something is similar does not make it the same.

    So, then, why does this disingenuous fuck think that actions which “significantly affect” interstate commerce are interstate commerce?

  16. But Obamacare has already started imposing taxes — namley the federal excise tax on tanning salons.

    1. Federal excise taxes aren’t unconstitutional (leaving out debates about whether 16A was properly ratified, &c.), however, and the law as drafted does not describe the individual mandate as a tax. If it did, there wouldn’t be a constitutional challenge now.

      The ACA would probably not have passed if the mandate had been written as a tax.

  17. Has Congress ever done anything artfully?

    1. I guess that depends on your opinion of Modern Art.

    2. What’re you taking about? Congress performs a “jackson pollock” on the electorate every day.

  18. Inartful drafting my pale white ass. The Democrats went to the ends of the earth to make sure nobody called it a tax. Now that the administration implies that it may indeed be a tax is not inartful, it’s fraud.

    1. Why is fraud in the private world actionable, potentially even criminally so, but perfectly fine when committed by government officials? Ditto lying in their official capacity?

      1. The Office of the Solicitor General seems to be useful for nothing other than committing fraud against the American public.

        1. We need the Censor, now more than ever.

      2. Well, lying to Congress can get you impeached if you’re the President. Doesn’t seem to be the case if you’re part of Congress.

        1. “Well, lying to Congress can get you impeached if you’re the President.”

          Doesn’t that have to be under oath?

  19. The really fun part is that one day the “penalty” is a “tax”, then another day it goes back to being a “penalty”. Over the course of these hearings, it will go back and forth between “penalty” and “tax” depending on which term is most beneficial to the government’s case.

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