Update from the oral argument (audio)
on Mar 26, 2012 at 11:23 am
(10:46am) – Tom Goldstein: I’ve left the Court to provide an initial update. Bob Long’s argument is almost done. At this point, it seems fairly clear that there are at least five arguments to hold that the anti-injunction act is not jurisdictional or that it does not apply to a penalty like the one in the ACA. But we’ll have to see after the other advocates go.
(11:20am) – Kevin Russell has stepped out to provide an update on the first half of the oral argument (at bottom of page).
For those who prefer reading, here is a summary of Kevin’s audio report:
Today’s arguments relate to the Court’s jurisdiction, and specifically whether the Anti-Injunction Act prohibits a pre-enforcement challenge to the individual insurance mandate. First up today was Robert Long, who was appointed by the Court as an amicus to argue that the Anti-Injunction Act prohibits the challenge from being heard at this point.
Long faced skeptical questioning from most members of the Court, including at least five Justices who all seemed to agree that the Anti-Injunction Act does not preclude the challenge, even as they offered different theories for why that’s the case. Justices Breyer and Sotomayor asked questions suggesting that the mandate and its associated penalty are not taxes within the meaning of the Anti-Injunction Act. Justice Scalia suggested that limitations on jurisdiction are normally construed narrowly, which likewise would press against application of the Anti-Injunction Act here. Justice Alito asked a number of questions suggesting that he did not believe the Anti-Injunction Act to be “jurisdictional,” and if it is not, then the government’s failure to raise the issue up to this point would forfeit any defense based on the Act.
The Chief Justice likewise suggested that even if the mandate is a tax, the government could waive the defense. He went so far as to invite the Solicitor General to do so in this case, but the SG declined, arguing that the unequivocal position of the United States is that the Anti-Injunction Act is jurisdictional in nature and cannot be waived. When asked why it was in the United States’ interest to take that position, the SG responded that if the Anti-Injunction Act was not jurisdictional, it would invite lower courts to craft additional equitable exceptions to its application, which would be detrimental to tax collection efforts.
There is still more argument to come, and we will update you as we are able