Day One of a three-day marathon of SCOTUS hearings on this landmark case.
Before the court today was a jurisdictional question, as the court brought in one Robert Long to argue that an 1867 law, the "Anti-Injunction Act," bars the court from entertaining any suit to restrain a tax before said tax has been collected. If the AIA argument prevails, the court would have to defer hearings on the Affordable Care Act until 2015 at the earliest. Which raises the question, what is it? Tax, fine, penalty, well-meaning suggestion?
Basically, today's question is "should we punt"? As it happens, none of the justices seem persuaded that the penalty or fine Obamacare attaches to the tax code is in fact a tax, and some fun was had today at the expense of US Solicitor General Donald Verrelli, who in arguments today kept calling the mandate's backstop a "tax penalty" (the government's position seems to be that it's a bit of both).
“Today you are arguing that the penalty is not a tax,” Alito said. “Tomorrow, you are going to be back, and you will be arguing that the penalty is a tax.”
Justice Breyer got so carried away with the day's antisemanticism that at one point he wondered whether the mandate itself should even in fact be considered a mandate. With an explicitly unenforceable and uncollectable penalty as its only backstop, Breyer seemed to get a bit hung up on the mandate's lack of... mandatoriality.
In any case, it looks like the debate will really get rolling tomorrow, and we'll begin to get a sense of whether or not the Randy Barnetts of the world will be crying in their beer by this time Wednesday.
As always, scotusblog remains the best way to get the latest info on the case as reports come out, and the long-running debate between Randy Barnett, Ilya Somin, Orin Kerr and others over at the Volokh Conspiracy is a great place to get extremely well-informed (though noticeably more slanted) discussion of the day's rulings.