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Tom Miller: Obamacare goes to court, part two: Are we talking about a penalty or a tax? March 26, 2012

This morning at the Supreme Court’s legal tour of the Affordable Care Act (“If it’s Monday, it must be the Anti-Injunction Act”), the court-appointed amicus curiae Robert Long ran into multiple rounds of skepticism from almost all of the nine justices. The Court seemed particularly skeptical that the issue involving the individual mandate penalty was one of its “jurisdiction” to hear the case. Past Supreme Court decisions had been rather inconsistent in how it treated the AIA, particularly involving whether the federal government could “waive” its provisions in particular cases, or that courts could make “equitable exceptions” in unusual circumstances.

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