On the government's power to tax a lot,
Which I'll argue today,
Though tomorrow I may
Invoke contradictory facts a lot."
Intense public interest in the Supreme Court hearing on the Affordable Care Act (a.k.a. Obamacare) means that even the most obscure preliminary arguments are followed with intense focus. Thus, the Wall Street Journal's article on the opening arguments was among the day's most popular, though it should normally have made one's eyes glaze over. The first day's argument turned on whether the penalty for non-compliance with mandated insurance is a tax. If so, argued Washington trial lawyer Robert Long, it is covered by the Anti-Injunction Act, which holds that taxes cannot be legally challenged until they are effective; in this case, that's not until 2014. The Obama administration, which evidently wants to get the legal challenges over with, did not agree, saying that the penalty is not a tax under the AIA. However, they intended to argue the next day that the penalty is covered by the government's constitutional power to levy taxes; certainly a nuanced position, to say the least.