divOn March 27, during the part of the Obamacare oral argument devoted to the individual mandate, Solicitor General Verrilli said that the Court has an “obligation to construe it as an exercise of the tax power, if it can be upheld on that basis.” To that, Chief Justice Roberts responded quite critically, interrupting the solicitor general and asking why then didn’t Congress call it a tax. The Chief does not seem particularly convinced on this issue, with the SG having a nonsensical answer of “there is nothing I know of that illuminates that.”
Yet, that is the exact issue he later accepted.
Here is the full exchange (from pages 49–50 of the transcript), including the preceding relevant exchange between Justice Kagan and the SG:
JUSTICE KAGAN: I suppose, though, General, one question is whether the determined efforts of Congress not to refer to this as a tax make a difference. I mean, you’re suggesting we should just look to the practical operation. We shouldn’t look at labels. And that seems right, except that here we have a case in which Congress determinedly said this is not a tax, and the question is why should that be irrelevant?
GENERAL VERRILLI: I don’t think that that’s a fair characterization of the actions of Congress here, Justice Kagan. On the—December 23rd, a point of constitutional order was called to, in fact, with respect to this law. The floor sponsor, Senator Baucus, defended it as an exercise of the taxing power. In his response to the point of order, the Senate voted 60 to 39 on that proposition. The legislative history is replete with members of Congress explaining that this law is constitutional as an exercise of the taxing power. It was attacked as a tax by its opponents. So I don’t think this is a situation where you can say that Congress was avoiding any mention of the tax power. It would be one thing if Congress explicitly disavowed an exercise of the tax power. But given that it hasn’t done so, it seems to me that it’s—not only is it fair to read this as an exercise of the tax power, but this Court has got an obligation to construe it as an exercise of the tax power, if it can be upheld on that basis.
CHIEF JUSTICE ROBERTS: Why didn’t Congress call it a tax, then?
GENERAL VERRILLI: Well—
CHIEF JUSTICE ROBERTS: You’re telling me they thought of it as a tax, they defended it on the tax power. Why didn’t they say it was a tax?
GENERAL VERRILLI: They might have thought, Your Honor, that calling it a penalty as they did would make it more effective in accomplishing its objective. But it is—in the Internal Revenue Code it is collected by the IRS on April 15th. I don’t think this is a situation in which you can say—
CHIEF JUSTICE ROBERTS: Well, that’s the reason. They thought it might be more effective if they called it a penalty.
GENERAL VERRILLI: Well, I—you know, I don’t—there is nothing that I know of that illuminates that, but certainly…
What a difference a few weeks make.
H/t to a frequent co‐author who must remain nameless due to his current occupation.