by Scott Moss

Thanks to Gerard for the invite to guest-blog on the ACA Supreme Court arguments. Gerard’s wonderful live-blogging plans having fallen through thanks to the Court’s pointless insistence that we hear their pearl of wisdom on tape delay rather than in real time, I’ll be posting just scattered thoughts, not any comprehensive summary that you can get from quick news reports, Twitter, etc.

If the government loses, its refusal call the mandate penalty a “tax” may be a historically collossal lawyering failure. The administration was understandably politically reluctant to call a “tax” the “penalty” of up to $750 (hereinafter, the “taxelty”) individuals will pay for not having insurance, but using the word “tax” is key to the arguments (a) that the taxelty falls within the tax/spend power even if not the commerce power (because any “tax” is within the tax/spend power), and (b) that the taxelty cannot be challenged until actually paid (in 2015) under the Anti-Injunction Act.

The administration eventually used the politically verboten term “tax” in its tax/spend power argument, but its refusal to call the “penalty” a “tax” likely dooms its Anti-Injunction Act argument — because by failing to make that argument, the administration arguably waived it, which is the “biggest hurdle” to this argument, C.J. Roberts noted, with the apparent agreement of several others (Kagan, Alito). And the administration’s failure to use the word “tax” to trigger the Anti-Injunction Act could undercut its attempt to deem the “penalty” a  ”tax” for purposes of the tax power, as shown by this snippet from Justice Breyer: “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?” Obviously Breyer could have been asking a rhetorical question here, but the administration’s unwillingness to say “tax” today induced “penalty-isn’t-tax” logic that could bite Mr. Verrelli in the behind tomorrow.

Like I just told a reporter, this is a big case, but in a sense it’s just like any other case in one way: there often is an argument (e.g., “it’s a tax”) that the lawyers says will help win, but that the client finds unpalatable to make. I’ve seen a personal injury claim die when the client, when pressed at deposition, was unwilling to admit ongoing mental impairment; the administration’s understandable political unwillingness to own the declaration, “it’s a tax,” may doom its case, and if it does, the ACA will be not only a con law precedent, but a case study in client reluctance to say what the lawyers say maximizes the odds of victory.

This was originally posted at Scott Moss is an Associate Professor of Law at the University of Colorado Law School

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