Obamacare at the Supreme Court, Day One: Rapid Reactions
"David Hogberg: “They all pretty much came down on the penalty side. There was some aggressive questioning as to why this is not a tax, but you never really got the sense that any of them wanted to use the AIA to avoid the case for the time being.
“Even some of the more liberal justices, Robert Long, who was the outside attorney who argued the tax portion, they hit him pretty hard. You could tell by the questions that they were asking, they just didn’t buy that this was necessarily a tax.
“The best that Long could come up with is, that it’s collected like revenue [by the IRS], but they weren’t buying it.”
Randy Barnett: “They looked as unanimous as they could possibly look on the case.” I asked Randy: if it’s so obvious that the mandate is a penalty, and not a tax, why did they bother to spend 90 minutes examining it? “It was absolutely essential that they hear the arguments, once the Fourth Circuit ruled that it was a tax. Law professors would have jumped all over them.”
“There was a good deal of skepticism on the tax power theory. At the beginning I would have said they were unanimously unsympathetic; I wouldn’t have been so confident at the end. So I really would expect them to decide this case on the merits, on the Commerce Clause and Necessary and Proper clause.”"
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