By the time the Supreme Court decided the cases challenging the Affordable Care Act in June 2012, the prediction market Intrade gave the law’s mandate that certain people maintain health insurance no more than a 26 percent chance of survival. See Nate Silver, “Overconfidence Suggested in Supreme Court Predictions,” N.Y. Times, June 27, 2012, available at fivethirtyeight.blogs.nytimes.com/2012/06/27/overconfidence-suggested-in-supreme-court-predictions/. At oral argument, several justices suggested that Congress exceeded its authority under the Commerce Clause, and that view ultimately commanded a majority.
Yet the mandate survived. Before the decision, few paid much attention to the government’s backup position: that the mandate was an exercise of Congress’s constitutional power to tax. This argument took up only 10 pages in the government’s opening brief—a third the length of the Commerce Clause point. It did not appear until page 52 of 63.
The solicitor general might have been tempted to omit it altogether. The president and many supporters in Congress resisted calling the law a tax during the debates before passage, which caused predictable heartburn when government lawyers began defending it as such in the lower courts. One district judge criticized this inconsistency as “an Alice–in–Wonderland tack.” Florida v. U.S. Dep’t of Health & Human Servs., 716 F. Supp. 2d 1120, 1143 (N.D. Fla. 2010). Some top administration lawyers also reportedly opposed making the tax argument. Still, the point hung around and hid out toward the back of the briefs and ultimately triumphed. It may be the greatest victory by a secondary argument in our legal history.
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