The justice on Monday appeared entirely unconvinced that the individual mandate provision constituted a tax rather than a penalty for the purposes of the Anti-Injunction Act. The view of the justices and most experts was a bit of a slap in the face of the United States Court of Appeals for the Fourth Circuit (and D.C. Circuit Judge Brett Kavanaugh), which ruled that it was barred from hearing the case until the first penalties come due in 2015 under the law. The 1867 law mandates that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person.” Kavanaugh wrote a dissent in the D.C. Circuit decision stating ““The Anti-Injunction Act means that a suit challenging the individual mandate cannot be entertained until 2015, unless Congress acts before then to exempt these suits from the Act. . . The Tax Code is never a walk in the park. But the statutory analysis here leads to a firm conclusion that the Anti-Injunction Act bars this suit.” However, if the comments of the justices are any indication, that is a walk Kavanaugh will take alone in Washington.
In one of a number of contradictions, the Administration initially argued that the law was a tax and then changed its position in the midst of the litigation below. With no party arguing for the applicability of the law, the court hired Robert A. Long to argue the issue and then heaped mild abuse on his arguments.
Clement’s comments, however, were a standout. He also added that the first day’s arguments were “about the most boring jurisdictional stuff one can imagine.”
He is scheduled to go before those boring, practical jokers in a few hours.
Source: NY Times