Earlier today, the Supreme Court heard oral arguments in the least sexy issue presented by the Affordable Care Act case — whether a law known as the Tax Anti-Injunction Act prevents the justices from deciding whether the individual mandate is constitutional until after 2014. If today’s oral argument was any indication, the answer to that question is a resounding no. The justices almost universally expressed skepticism at the claim that the Anti-Injunction Act applies here, with a majority of them appearing to favor a particular reason for saying so.
As ThinkProgress previously explained, the Anti-Injunction Act does not permit anyone to bring a lawsuit trying to block the collection of a tax — taxpayers must first pay their taxes and then, if they believe that they were forced to pay too much, they are allowed to sue for a refund. This matters because the mandate functions by requiring most Americans to either carry insurance or pay slightly more income taxes — and since this provision has not yet taken effect, no one has actually payed the higher taxes they are required to pay under the mandate.
At today’s oral argument, however, the justices appeared poised to limit the scope of this law in a way that conveniently allows them to decide this case without a hitch. Going into today’s argument, the Tax Anti-Injunction Act had often been read as a “jurisdictional” statute — meaning that it prevents a lawsuit from moving forward even if the federal government decides that they want to allow the lawsuit to proceed anyway. DOJ argued today that the Anti-Injunction Act does not apply, and a cross-ideological bloc of justices seemed to indicate that they though DOJ’s actions constitutes a valid waiver of the Anti-Injunction bar. At various points in the argument, Chief Justice Roberts, and Justices Kennedy, Alito, Sotomayor, Kagan, all seemed to suggest that the Anti-Injunction Act might not be jurisdictional, and thus this lawsuit can proceed today.
It remains to be seen what theory the justices will adopt to say that the Tax Anti-Injunction Act does not apply to this lawsuit. One thing that appears quite clear, however, is that the justices are eager to move on to the merits of this case.