This morning at the Supreme Court’s legal tour of the Affordable Care Act (“If it’s Monday, it must be the Anti-Injunction Act”), the court-appointed amicus curiae Robert Long ran into multiple rounds of skepticism from almost all of the nine justices. The Court seemed particularly skeptical that the issue involving the individual mandate penalty was one of its “jurisdiction” to hear the case. Past Supreme Court decisions had been rather inconsistent in how it treated the AIA, particularly involving whether the federal government could “waive” its provisions in particular cases, or that courts could make “equitable exceptions” in unusual circumstances.
Justice Breyer focused less on the jurisdiction issue and more on how Congress had gone to great lengths in treating the individual mandate in the Affordable Care Act (ACA) as a “penalty” rather than a “tax.” Justice Kagan pointed out how other “fees and penalties” in the health law were placed in parts of the Internal Revenue Code where the AIA would apply. On the other hand, the individual mandate operated much more like a regulatory command, with a penalty attached to it.
Long’s response was that the penalty could not be separated from the mandate. In other words, one could not just be in violation of the mandate without also incurring the penalty. (Technically, that’s not quite right, because some people could be exempt from the penalties without being exempt from the mandate.) His better point was that the penalty was the sole means provided in the ACA for enforcing the minimum coverage mandate. He also pointed out that definition of a “tax” for purposes of the AIA barrier to lawsuits is different than the definition of a tax for purposes of determining the constitutional authority of Congress to impose an individual insurance coverage mandate.
Although Long relied heavily on language in the ACA that provided that the penalties under the individual mandate would be assessed and collected in the same manner as the taxes, Justice Breyer pointed out that Congress used other language that had nothing to do with the Internal Revenue Code and it did not use the word “tax” in connection with the ACA mandate.