I would caution everyone from reading too much into the questions asked by the Justices on the first of three days of oral argument, but it was an interesting day of oral argument. Go here to read the transcript. Go here to listen to an audio recording of the oral argument. My thoughts on the first day I will post this evening.
1. Individual Mandate Not a Tax-Many of the justices seemed sceptical that the individual mandate is a tax, and three of the liberal justices were among them. This could be important because it is a strong indication that the Court is not going to dodge ruling on the Constitutionality of ObamaCare by citing the Anti-Injunction Act of 1867, which bars federal courts from enjoining a tax until it goes into effect, and ruling that the constitutionality of the individual mandate could not be ruled upon until it went into effect in 2015. The Court took the issue of the Anti-Injunction Act seriously enough to appoint Robert Long, a veteran member of the Supreme Court Bar, to brief and argue today for forty minutes that the Act does apply. The Justices took this unusual step due to the fact that none of the parties were arguing now that the Anti-Injunction Act was applicable, although that had been a prior position of the Government, later abandoned presumably because the Obama administration, as well as the opponents of ObamaCare, wants the Court to resolve this issue this year.
2. Tax Clause-Assuming that the individual mandate is not a tax, then it could not be argued, as the government does, that Congress had the power to implement the individual mandate under the Tax Clause of the Constitution. The government could still win under the Commerce Clause or the Necessary and Proper Clause, but it looks like the Tax Clause argument is a loser before the Court.
Today basically was devoted to the preliminary issue of whether the Court would rule on the Constitutionality of ObamaCare now, or put off the entire matter until 2015. After today I doubt if the court will delay ruling directly on ObamaCare. Tomorrow we will be getting into arguments about the constitutionality of ObamaCare, focusing on the individual mandate requirement.