Nearly everyone who is commenting on the first round of oral arguments in the ObamaCare case seems to think it highly likely that the Supreme Court will decide the case on the merits—that is, they will decide if the individual mandate is constitutional rather than pushing the issue back for another day.

I agree. The arguments today looked at a law called the Anti-Injunction Act (AIA) and whether it precludes pre-enforcement challenges to the individual mandate. The AIA prevents plaintiffs from challenging a tax assessment until the tax has been collected. Only after collection can plaintiffs sue for a refund, plus interest. Since the individual mandate is enforced by a penalty that is collected by the IRS, there is a question as to whether the AIA applies.

Because both the government and the law’s challengers want the case to be heard on the merits rather than dismissed, the Court appointed an outside attorney to argue that the AIA totally bars ruling on the challenge to the individual mandate. That attorney, Robert Long, faced many difficult questions from the justices. At least five justices, and probably more, seemed to believe that the AIA should not apply for one reason or another. Some seemed to think that it doesn’t apply because the penalty for non-compliance with the mandate is not a “tax” to which the AIA applies (a position similar to the one argued in Cato’s brief). Some seemed to think that the AIA does not create an absolute jurisdictional bar but rather allows for equitable exceptions if the issue is too important not to be heard.

As Ilya Somin points out at the Volokh Conspiracy, some of these issues are intertwined with the merits of the individual mandate itself, specifically whether or not it is a tax. Like most judges who have heard the case, the justices seemed very skeptical of the argument that the penalty is a tax. Justice Stephen Breyer even pointed out what many have said, the law says “penalty,” not “tax.” While this doesn’t solve the issue, it seems odd given the fact that the federal government knows how to use the word “tax” when it wants to, as everyone is painfully aware.

Going into the big day tomorrow–the argument over the individual mandate–we can expect a lively bench and many challenging questions. From today’s arguments, however, I would not expect any justice to push the taxation theory too hard.