(This is The Legal Pulse’s 600th post)

It doesn’t walk like a tax, it doesn’t talk like a tax, the Anti-Injunction Act doesn’t apply–but it’s a tax.

It was perhaps unsurprising that the Court ruled today that the Anti-Injunction Act (which prevents suits seeking to enjoin the collection of taxes until after those taxes are enforceable) did not preclude a legal challenge to the individual mandate. Only one court, the U.S. Court of Appeals for the Fourth Circuit, out of the myriad courts that have ruled on such challenges, had held that the AIA applied. Further, the government itself had refused to argue that the AIA applied (despite having done so in several lower courts), which forced the Court to appoint an amicus–or friend of the Court–to argue this point. But America’s jaw dropped when the Court ruled that, although the mandate was not a tax for purposes of the AIA, it was a valid tax under the Constitution.  Prior to the judgment, the conventional wisdom was that the mandate would not be upheld on a taxing power basis.  But further, it’s counter-intuitive that a tax can be tax, while at the same time, not being a tax.

In writing the majority opinion, Chief Justice Roberts seemed to brush off the apparent contradiction, devoting only a few paragraphs to explaining the difference. His explanation is that the AIA does not apply to all taxes, and indeed can apply to provisions that are not taxes. As a congressionally created statute, the determinative factor is whether Congress intends for the AIA to apply to a given provision. This criteria does not apply to the constitutional inquiry of whether an enactment is a tax. The constitution’s requirements cannot be skirted simply because Congress wishes it so. Thus, whether a provision is valid under the Constitution depends on how that provision functions, not Congress’s intent.

In this case, Chief Justice Roberts explains, congressional intent is evidenced by Congress’s language. This is because the language of the AIA indicates that the statute applies to suits “for the purpose of restraining the assessment or collection of any tax,” (emphasis added). Whereas Congress had labeled various provisions of the ACA as “taxes,” it described the payment imposed upon failure to obtain health insurance as a “penalty.” It is a well-established canon of judicial interpretation that where Congress uses different language to describe different parts of a statute, it does so deliberately. And the Court must give effect to Congress’ deliberate choices. Here, because Congress used the word “tax” to describe some portions of the statute but not the mandate, the Court inferred that Congress did not intend for the AIA to apply to the so-called “penalty.”

Some people might have a different idea as to why Congress labeled the penalty as such: perhaps Congress didn’t think the penalty was a tax. Congress’s own language seems to indicate it was enacting the mandate pursuant to the Commerce Clause (the mandate “regulates activity that is commercial and economic in nature.”)

What’s more, there was a strong political reason to call the mandate a “penalty”: President Obama had promised not to raise taxes on the middle class. This promise caused the President to publicly deny that the mandate was a tax. Nevertheless, Chief Justice Roberts concluded that Congress’ choice of words signals that it did not intend for the AIA to apply to this provision.

This is not to approve of the Court’s separate determination that the individual mandate is a valid tax under the Constitution. In my mind Justice Ginsburg’s comments at oral arguments (“A tax is to raise revenue… and the purpose of this exaction is to get people into the health care [risk pool] before they need medical care. And so it will be successful, if it doesn’t raise any revenue, if it gets people to buy the insurance…”) along with Justice Breyer’s comments to the Solicitor General (“Why do you keep saying tax?”) draw into question the genuineness of the outcome. It’s plausible that certain justices desired to uphold the mandate based on the Commerce Clause, but could only get Justice Roberts, who typically decides cases on narrower grounds, through a taxing justification.

Further, enacting a tax under another name undermines representative government by obscuring political accountability, and contradicts the principles of federalism that begin Justice Roberts’ majority opinion. The primary check on the expansive taxing power, other than, as the dissent notes, “the sheer impossibility of managing a Federal Government large enough” to “assume all the general-welfare responsibilities traditionally exercised by the States,” is the fact that the public is sensitive to tax increases. Thus, political accountability holds Congress’s use of the taxing power in check. As federal district court Judge Vinson noted in his 2010 Florida v. HHS ruling, it is reasonable to infer that Congress “proceeded as it did specifically because it did not want the penalty to be ‘scrutinized’ as a $4 billion annual tax increase, and it did not want at that time to be ‘held accountable’ for taxes that they imposed.” Rather, members of Congress sought to “insulate themselves from the potential electoral ramifications of their votes.”

Surely much is left to be interpreted and explained. But perhaps this analysis provides some insight to how the tax that wasn’t, both is and is not.