This little bit from coverage of the Supreme Court's hearings on President Obama's healthcare plan is fascinating — there are reasons why the administration wants the fines for non-compliance to be viewed as a tax and other reasons why everyone wants it to not be viewed as a tax (viewing it as a tax would delay the decision for years).
“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,” said Justice Samuel Alito, in one of the few laugh lines throughout the 90 minutes of argument Monday.
The remark underscores the fine line the White House is walking in its argument. On one hand, it says the backstop is not a tax, because that could subject it to the Anti-Injunction Act — the focal point of Monday's arguments — and delay a ruling to at least 2015. On the other, they claim that the power to impose a penalty derives from Congress' broad taxing power. That's in part because calling it a tax makes defending the mandate easier — Congress' power to levy taxes is less in question than its power to require people to do things.
Nothing like a few good technicalities to make a Supreme Court hearing more interesting.