The first issue before the Court was the Anti-Injunction Act of 1867 which says that you can’t challenge a tax until it’s been collected. Under the new Affordable Care Act if you don’t have health insurance you pay a penalty, and because that penalty is assessed depending upon your income and is collected by the IRS it could be seen as a tax. And since that tax has yet to be collected an appeal is premature, a position neither side is claiming and so the Court appointed Washington lawyer Robert A. Long, pictured below, to play devil’s advocate, or more properly amicus curiae.
Lyle Denniston’s take on today’s arguments here.