Independence Institute Research Director David Kopel, who is also a constitutional law professor at DU Law School, offered the following comment on today’s Supreme Court oral argument:
Today the Justices strongly indicated that they will address the merits of the health control law, and will reject the argument that the Anti-Injunction Act prevents them from deciding the constitutionality of the individual mandate. Although the Justices had different rationales, they appeared to be unanimous in their result. Notably, the one Justice who said he agreed with an expansive interpretation of the Anti-Injunction Act was Justice Breyer, and he said that the Act did not apply at all, because the individual mandate penalty is not a “tax.”
The oral argument also highlighted how badly the health control law was drafted, even in its most important provision, the penalty for not purchasing health insurance from the congressionally-favored oligopoly. Solicitor General Verrelli, representing the Obama administration, had to perform numerous verbal contortions in order to defend the administration’s interpretation of the penalty, leading Justice Kagan to ask, “Is your whole point that this was inartful drafting by Congress . . . ?” Today’s argument is a reminder that when Congress enacts a lengthy statute which was, apparently, never read in its entirety by a single congressperson who voted for it, the statute will probably create numerous unintended consequences, which even the government cannot justify.