Day two at SCOTUS: Is the individual mandate penalty a tax?

The justices will hear two hours of arguments on the mandate today, after yesterday's rather technical arguments that dealt with the question of an obscure law called the Anti-Injunction Act. But what might be surprising is that even some liberal justices might reject the government's argument that the mandate penalties for not having insurance are taxes and therefore, not subject to Supreme Court review. Ilya Somin: Justice Stephen Breyer suggested that the mandate is not a tax because "Congress has nowhere used the word "'tax.'" Justice Ginsburg noted that the mandate may not be a tax because it isn't a "revenue-raising measure," and because the monetary penalty is separable from the mandate itself. Justice Sotomayor also expressed doubts about whether the mandate is a tax, as did several for the conservative justices. As far as I can tell, none of the justices seemed to support the argument that the mandate is a tax. Thus, today's events do not bode well for the federal...(Read Full Post)

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