The transcript is here, all 91 pages of it. Here we go. And the audio is here. Right now I’m listening to the MP3, reading the transcript, and listening to Randy Barnett yap away on a conference call.
And, it seems abundantly clear that none of the Justices–in conflict with the Fourth Circuit and Judge Kavanaugh–buy the AIA argument.
Really, if the facts were any different, this is as boring as hell.
Long-Court Appointed Amicus
This Scalia bit is funny:
JUSTICE SCALIA: Mr. Long, I don’t think you are going to come up with any, but I think your response is you could say that about any jurisdictional rule. 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.
So it seems to me it’s a question you can’t answer. It’s a question which asks “why should there be any jurisdictional rules?” And you think there should be.
Even Breyer wasn’t buying the tax argument:
JUSTICE BREYER: I just don’t want you to lose the second half of your argument. And we have spent all the time so far on jurisdiction. And I accept, pretty much, I’m probably leaning in your favor on jurisdiction, but where I see the problem is in the second part, because the second part says “restraining the assessment or collection of any tax.”
Now, here, Congress has nowhere used the word “tax.” What it says is penalty. Moreover, this is not in the Internal Revenue Code “but for purposes of collection.”
And so why is this a tax? And I know you point to certain sentences that talk about taxes within the code –
MR. LONG: Right.
JUSTICE BREYER: — and this is not attached to a tax. It is attached to a health care requirement.
MR. LONG: Right.
JUSTICE BREYER: — so why does it fall within that word?
RBG flatly rejected the fact that this should be viewed as a revenue-raising model:
JUSTICE GINSBURG: Mr. Long, you — you said before — and I think you were quite right — that the Tax Injunction Act is modeled on the Anti-Injunction Act, and, under the Tax Injunction Act, what can’t be enjoined is an assessment for the purpose of raising revenue. 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.
Sotomayor wasn’t having it:
JUSTICE SOTOMAYOR: Absolutely. But even the section of the Code that you referred to previously, the one following 7421, the AIA, it does very clearly make a difference — 7422 — make a difference between tax and penalties. It’s very explicit.
Nor was Kagan:
JUSTICE KAGAN: Mr. Long, aren’t there places in this Act — fees and penalties — that were specifically put under the Anti-Injunction Act? There is one on health care plans, there is one on pharmaceutical manufacturers, where Congress specifically said the Anti-Injunction Act is triggered for those. It does not say that here. Wouldn’t that suggest that Congress meant for a different result to obtain?
JUSTICE KAGAN: But, Mr. Long, aren’t you trying to rewrite the statute in a way? The statute has two sections. One is the you have to have insurance section and the other is the sanction. The statute has two different sets of exceptions corresponding to those two different sections. You are trying to suggest that the statute says: Well, it’s your choice; either buy insurance or pay a — or pay a fee.
But that’s not the way the statute reads. And Congress, it must be supposed, you know, made a decision that that shouldn’t be the way the statute reads, that it should instead be a regulatory command and a penalty attached to that command.
I’ve heard Balkin and others spill so much ink about how this was a tax, blah blah. Not one justice buys it.
Oh how politics comes back to bite you in the ass. This was Judge Vinson’s point way back when. The President didn’t want to take the political heat of imposing a new tax so he called it a penalty. Now, boom. Congress makes their bed, and now they have to live with it.
Someone should buy Judge Kavanaugh a stiff drink today. Trying to avoid the issue in a manner that NOT ONE OF THE JUSTICES buy didn’t pan out.
The SG opened up noting the importance of this case, already looking till tomorrow.
This case presents issues of great moment, and the Anti-Injunction Act does not bar the Court’s consideration of those issues. That is so even though the Anti-Injunction Act is a jurisdictional limit that serves what this Court described in Clintwood Elkhorn as an exceedingly strong interest in protecting the financial stability of the Federal Government, and even though the minimum coverage provision of the Affordable Care Act is an exercise of Congress’s taxing power as well as its commerce power.
Alito hit him right off the bat–today it’s not a tax, tomorrow it is!
JUSTICE ALITO: General Verrilli, 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?
GENERAL VERRILLI: No, Justice Alito, but the Court has held in a 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.
In a funny interchange, the SG continued its insistence that the Court need not decide the jurisdiction issue:
JUSTICE GINSBURG: So — so you — you agree that we would not — if we agree with you about the correct interpretation of the statute, we need not decide the jurisdiction.
GENERAL VERRILLI: There would be no reason to decide the jurisdictional issue.
JUSTICE KENNEDY: Don’t you want to know the answer?
GENERAL VERRILLI: Justice Kennedy, I think we all want to know the answer to a lot of things in this case. But — but I do — I do think that the prudent course here is to construe the statute in the manner that we read it. . . .
GENERAL VERRILLI: That’s — that is not our assessment of the institutional interests of the United States, Justice Ginsburg. And we do think that the -the right way to go in this case is to read the statute as not applying to the minimum coverage provision of the Affordable Care Act.
Sotomayor asked further about collateral consequences of failing to buy health insurances:
SOTOMAYOR: Could we address, General, the question of whether there are any collateral consequences for the failure to buy — to not buy health insurance? Is the only consequence the payment of the penalty?
The private respondents argue that there are other collateral consequences such as for people on probation who are disobeying the law, if they don’t buy health insurance they would be disobeying the law and could be subject to having their supervised release revoked.
GENERAL VERRILLI: Yes. That is not a correct reading of the statute, Justice Sotomayor. The only consequence that ensues is the tax penalty. And the — we have made a representation, and it was a carefully made representation, in our brief that it is the interpretation of the agencies charged with interpreting this statute, the treasury department and the Department of Health and Human Services, that there is no other consequence apart from the tax penalty.
This seems like a cop-out, as the decision to prosecute would not come from Treasury or HHS.
And, the understatement of the day from Justice Sotomayor on inartful drafting:
JUSTICE SOTOMAYOR: Is your whole point that this was inartful drafting by Congress; that, to the extent that there is an exemption under the penalty, it’s an exemption from the legal obligation?
Kagan asks a similar question, about whether failing to buy health insurance is a federal offense:
JUSTICE KAGAN: The nature of the
representation you made, that the only consequence is the penalty, suppose a person does not purchase insurance, a person who is obligated to do so under the statute doesn’t do it, pays the penalty instead, and that person finds herself in a position where she is asked the question, have you ever violated any federal law, would that person have violated a federal law?
GENERAL VERRILLI: No. Our position is that person should give the answer “no.”
JUSTICE KAGAN: And that’s because -GENERAL
VERRILLI: That if they don’t pay the tax, they violated a federal law.
JUSTICE KAGAN: But as long as they pay the penalty -GENERAL
VERRILLI: If they pay the tax, then they are in compliance with the law.
LOL. Breyer chastised Verrilli for saying tax!
JUSTICE BREYER: Why do you keep saying tax?
GENERAL VERRILLI: If they pay the tax penalty, they’re in compliance with the law.
JUSTICE BREYER: Thank you.
GENERAL VERRILLI: Thank you, Justice Breyer.
JUSTICE BREYER: The penalty.
GENERAL VERRILLI: Right. That’s right.
Alito cited a brief filed by 2 former IRS Commissioners who opposed the SG’s position:
ALITO: Two former — two former commissioners of the IRS have filed a brief saying that your interpretation is going to lead to a flood of litigation. Are they wrong on that?
GENERAL VERRILLI: Yes. We don’t — you know — we’ve — we’ve taken this position, after very careful consideration, and we’ve assessed the institutional interests of the United States and we think we are in the right place.
It seems the answer to every policy question is that they point to “institutional interests.”
Scalia was so, so quiet. No questions.
Justice Breyer–paraphrasing one of his judicial icons–notes that taxes are the life blood of government (“Taxes are the price we pay for civilization“:
JUSTICE BREYER: Basically it begs the difference — language is relevant, there are a lot of relevant things. But one thing that’s relevant in my mind is that taxes are, for better or for worse, the life’s blood of government.
Katsas explained clearly that if the rule is jurisdictional, it cannot be waived, noting that the gov argued jurisdiction below, but waived it on appeal:
SOTOMAYOR: Why would that not promote Congress’s policy of insuring — or Congress, explicitly -MR.
KATSAS: It’s jurisdictional except when the Solicitor General waives it?
JUSTICE SOTOMAYOR: Yes. It’s a contradiction in terms. I don’t disagree.
MR. KATSAS: It is a contradiction in terms. All of your cases analyze the situation as if the statute is jurisdictional, then it’s not subject to waiver. If you were to construe this as such a one-of unique statute, it seems to me we would still win because the Solicitor General with full knowledge of the Anti-Injunction Act argument available to him affirmatively gave it up. This is not just a forfeiture where a government lawyer is — through inadvertence fails to raise an argument. This is a case where the government -JUSTICE
SOTOMAYOR: They raised it and then gave it up.
MR. KATSAS: They made it below. They know what it is [JB: a losing argument] ; and not only are they not pursuing it here, they are affirmatively pursuing an argument on the other side.
And with that Roberts, thanked Long as Amicus:
CHIEF JUSTICE ROBERTS: Mr. Long, you were invited by this Court to defend the proposition that the Anti-Injunction Act barred this litigation. You have ably carried out that responsibility, for which the Court is grateful.
MR. LONG: Thank you.
CHIEF JUSTICE ROBERTS: We will continue argument in this case tomorrow..
I have wondered whether the appointment of amicus is improper as there is no live case or controversy. Anyway.