over whether legal challenges to President Barack Obama's health care law are premature under the Anti-Injunction Act, which bars lawsuits against a tax until after the tax is paid:
Solicitor General Donald Verrilli: This case presents issues of great moment and the Anti-Injunction Act does not bar the Court's consideration of those issues.
Donald Verrilli
Robert A. Long: (amicus curae, friend of the court)
Somewhat to my surprise, "tax" is not defined anywhere in the Internal Revenue Code.
Justice Sonia Sotomayor:
Assuming we find that this is not jurisdictional, what is the parade of horribles that you see occurring if we call this a mandatory claim processing rule? What kinds of cases do you imagine that courts will reach?
Justice Antonin Scalia:
If it's not jurisdictional, what's going to happen is you are going to have an intelligent federal court deciding whether you are going to make an exception. And there will be no parade of horribles because all federal courts are intelligent.
Justice Stephen Breyer: What we want to do is get money from these people. Most of them get the money by buying the insurance and that will help pay. But if they don't, they are going to pay this penalty, and that will help, too.
Justice Samuel Alito: Today you are arguing that the penalty is not a tax. Tomorrow you are going to be back and you will be arguing that the penalty is a tax. Has the Court ever held that something that is a tax for purposes of the taxing power under the Constitution is not a tax under the Anti-Injunction Act?
Verrilli: No, Justice Alito, but the Court has held in the license tax cases that something can be a constitutional exercise of the taxing power whether or not it is called a tax. And that's because the nature of the inquiry that we will conduct tomorrow is different from the nature of the inquiry that we will conduct today. Tomorrow the question is whether Congress has the authority under the taxing power to enact it and the form of words doesn't have a dispositive effect on that analysis. Today we are construing statutory text where the precise choice of words does have a dispositive effect on the analysis.
All food for thought for every physician, and American
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