The justices asked an outside lawyer, Robert Long, to make the case for why the mandate is a tax. His brief is here. Long was the first lawyer to present an argument.
In the early going, the justices peppered Long with questions. But Totenberg said Solicitor General Donald B. Verrilli Jr. "seemed pretty successful at batting back the balls" on the question of whether the mandate was a tax.
Still, Totenberg said a brief filed by two former IRS commissioners that said the mandate should be considered a tax did make an impression on at least two justices. The brief, Totenberg said, warned that the federal government could expect a flood of lawsuits on other tax matters if the mandate is not found to be a tax.
Verrilli said the government disagreed and considered the insurance mandate to be a very special case, Totenberg said.
Overall, Totenberg said, the questioning suggested that the justices were "groping to get to the merits of this case and get over this [Anti-Injunction Act] hurdle." As Justice Stephen Breyer noted, Congress specifically labeled the insurance mandate as a "penalty," not a tax — and one reason was so that the law could be challenged in court.
Over at The Wall Street Journal's live blog of the proceedings (written by reporters shuttling in and out of the courtroom), Brent Kendall reported a similar impression: "Few of the justices' questions appear sympathetic to Mr. Long's argument that the high court doesn't have jurisdiction to consider the insurance mandate now."
After the individual mandate kicks in come 2014, people who can't show they have insurance coverage will have to pay the penalty as a levy on their individual tax returns. Those returns won't get filed until 2015.
Since nobody has faced the mandate yet, much less paid a penalty for not complying with it, there has been no harm.
And if the mandate is really a tax, as one line of argument goes, then the court has no business making a decision about the health law until 2015.
Previously, in a dissenting opinion concerning an earlier challenge of the health law, Judge Brett Kavanaugh, of the U.S. Court of Appeals for the District of Columbia, wrote:
"The Tax Code is never a walk in the park. But the statutory analysis here leads to a firm conclusion that the Anti-Injunction Act bars this suit."
And the same logic could apply to the current argument.
Early on, the Obama administration invoked the idea that the Anti-Injunction Act would shield the health law from challenges that claimed the mandate was a tax. But the administration dropped that defense when it didn't get much traction.
Outside the court this morning, demonstrators for and against the health law tried to outdo each other. NPR's Ari Shapiro reported that they could use some new material.
They'll have two more days to work on their chants.
