Alito also noted concerns that forcing people to wait until after they’ve paid a penalty on the individual mandate puts people in a position of having to disobey the law to make a claim. Long disagreed with that contention, but he later allowed, “I would not argue that this statute is a perfect model of clarity” to chuckles.
DeGette, a lawyer and a prominent backer of the law, acknowledged that the justices face a tricky task in sorting through the tax question. “If they are going to uphold the mandate, they might have to call it a tax,” she acknowledged, and yet, if it is a tax, taking the case now appears to contradict the statute.
“It’s a fine line,” she said.
She said the tax concerns could be the “sleeper issue” but that she expects the court to rule on the broader case and find a way around it.
Otherwise, she surmised, it wouldn’t have taken the case in the first place.