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What Questions Did Supreme Court Justices Ask?—PICTURES What Questions Did Supreme Court Justices Ask?—PICTURES

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Health Care / HEALTH CARE

What Questions Did Supreme Court Justices Ask?—PICTURES

photo of Michael Catalini
March 26, 2012

In the first day of oral arguments over the 2010 Affordable Care Act, most of the nine Supreme Court justices seemed skeptical of arguments that it is too soon to even think about ruling on the law's constitutionality. All 90 minutes of arguments on Monday centered on a law called the Anti-Injunction Act, which prevents citizens from challenging a tax until that tax has been imposed and paid. The health care law requires everyone to have health insurance or pay a fine, and the issue being debated on Monday was whether that fine amounts to a tax. Here’s how some of the justices weighed in:

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Justice Ruth Bader Ginsburg: “This is not a revenue-raising measure, because, if it’s successful, they won’t—nobody will pay the penalty and there will be no revenue to raise.”(AP Photo/Pablo Martinez Monsivais)

Justice Stephen Breyer: "[O]ne thing that's relevant in my mind is that taxes are, for better or for worse, the life's blood of government." Later, Breyer noted: "Now, here, Congress has nowhere used the word 'tax.' What it says is 'penalty.' Moreover, this is not in the Internal Revenue Code 'but for purposes of collection' ... and this is not attached to a tax. It is attached to a health care requirement.”(Richard A. Bloom)

Justice Sonia Sotomayor: "From all the questions here, I count at least four cases in the Court's history where the Court has accepted a waiver by the Solicitor General and reached a tax issue."(AP Photo/Pablo Martinez Monsivais)


Justice Elena Kagan: "Aren't there places in this Act—fees and penalties—that were specifically put under the Anti-Injunction Act? There is one on health care plans, there is one on pharmaceutical manufacturers, where Congress specifically said the Anti-Injunction Act is triggered for those. It does not say that here. Wouldn't that suggest that Congress meant for a different result to obtain?"(Chet Susslin)

Justice Samuel Alito pointed out that the government’s lawyer, Solicitor General Donald Verrilli, was in a contradictory position: "General Verrilli, today you are arguing that the penalty is not a tax. Tomorrow you are going to be back and you will 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?"(AP Photo/Rich Schultz)

Justice Anthony Kennedy is considered the Court’s swing vote on this issue. But he didn’t say much: “It would seem to me that there might be some instances in which the government would want to litigate the validity of a tax right away and would want to waive.”(Charles Dharapak/AP)


Chief Justice John Roberts brought up a 1937 ruling, Helvering v. Davis, in which the Court upheld the Social Security Act. That was a tax challenge, he noted. “So are you asking us to overrule the Davis case?” Roberts asked Robert Long, the outside lawyer hired to argue the Anti-Injunction Act issue.(AP Photo/Michael Conroy)

Justice Clarence Thomas was his usual taciturn self, asking not a single question.(AP Photo/Charles Dharapak)

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