Solicitor General Verrilli's Argument on the Anti-Injunction Act

Solicitor General Robert Verrilli argued to the Supreme Court that the Anti-Injunction Act does not bar the courts from determining the constitutionality of the individual mandate at this time. As in yesterday's post, the numbers in bold are page numbers from the transcript of oral argument.

31.  General Verrilli commenced his presentation by reminding the Court that the nation needs an answer from them about the constitutionality of the Affordable Care Act:

GENERAL VERRILLI: Mr. Chief Justice and may it please the Court: This case presents issues of great moment, and the Anti-Injunction Act does not bar the Court's consideration of those issues.

Right out of the box, Justice Alito asked Verrilli the $64,000 Question:

JUSTICE ALITO: General Verrilli, today you are arguing that the penalty is not a tax. Tomorrow you are going to be back and you 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 responded clearly and concisely, arguing that in matters of statutory interpretation the precise text of the law must be followed, but that the language of the Constitution has been and should be interpreted more broadly:


GENERAL 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.


32.  Justice Sotomayor asked about the applicability of the Bailey v. George (1922) in which the Court found that the Anti-Injunction Act did not apply to the Child Labor Tax.  General Verrilli declined to rely on that case because the same day, in Bailey v. Drexel Furniture, the Supreme Court struck down the Child Labor Tax. General Verrilli said that "the Affordable Care Act provision is the same thing as the provision that was held unconstitutional in Bailey against Drexel Furniture."  Basically, the Child Labor Tax Cases are notorious decisions prohibiting Congress from regulating child labor even by means of the taxing power.  The government wisely rejected any reliance on those cases.

34.  In an discussion with Justice Ginsburg and Justice Kennedy, all three agreed that if the Anti-Injunction Act does not apply to the individual mandate because it is not a "tax" within the meaning of the statute, it would not be necessary to decide whether the AIA is jurisdictional or whether the government may waive its provisions. There was additional extended discussion about whether the AIA is jurisdictional or not, but the impression I have from the transcript was this was "academic" in nature and not dispositive of the case.

43.  Justice Ginsburg asked General Verrilli whether any other laws would be affected if the Court rules that the individual mandate is not subject to the AIA. Verrilli identified five such laws.

45.  Justice Sotomayor asked whether there were any other penalties for violation of the individual mandate other than the monetary penalty in the statute; for instance, could someone's probation or parole be revoked  because of the failure to have health insurance. Verrilli stated that "there is no other consequence apart from the tax penalty."

For the remainder of the argument there were no questions from the Court challenging the Solicitor General's position that the AIA does not apply to this case. There were some questions attempting to establish whether exemptions from paying the penalty also constituted exemptions from the individual mandate, and specifically whether individuals could be required to sign up for Medicaid. Verrilli maintained that people could not be forced to obtain health insurance whether or not the penalty applied to them.

This portion of the argument confirmed the impression that the Justices intend to rule that the AIA does not apply and that the Supreme Court therefore has jurisdiction to decide on the constitutionality of the individual mandate.

Wilson Huhn teaches Constitutional Law at The University of Akron School of Law.