My impression in thinking about and reading about the Fourth Circuit’s decision in Liberty University v. Geithner is that there are not many people out there who are knowledgeable about the federal tax Anti-Injunction Act and the authoritative precedents interpreting it. I say this not as an authority on the statute, as I assuredly am not. I say it as someone who has tried to stay abreast of the jurisdictional issues surrounding the mandate challenges but who still has lots of catch-up work to do on the federal tax AIA. There are not many out there with pre-existing expertise in this area. Most are learning it as they go, and there’s only so much time in the day. Moreover, many discounted the federal tax AIA after a while and focused on other issues. For example, even after the Fourth Circuit ordered supplemental briefing, I thought it was a signal about the panel’s interest in upholding the mandate as a tax rather than an interest in analyzing the jurisdictional bar, so accustomed had I become to the federal government losing on the issue. Perhaps my perspective is peculiar, but I suspect not.
For those not inclined to spend the weekend tracking down cases interpreting the federal tax AIA (but who believe that the law constrains and that it’s not ideology all the way down), here are some reasons to believe that the Fourth Circuit majority might be right about the AIA:
(1) As Ilya Somin has pointed out and Brad Joondeph has emphasized, a critical piece of Judge Motz’s analysis is the conclusion that “tax” has a broader meaning in the AIA than in analyzing the scope of Congress’s Article I powers. Other courts’ analyses have not adequately accounted for this statutory expansiveness.
(2) The federal government’s initial litigating position was less likely than its later position to be refracted through considerations about how certain arguments would be reported by the media and received by the broader public.
(3) None of the appellate courts had the benefit of an adversarial presentation of the issues. But the Fourth Circuit had the benefit of all the other prior AIA analyses and took the time to address the perceived shortcomings of each.
(4) The Fourth Circuit was able to consider the amicus brief filed (in the D.C. Circuit) on behalf of two former IRS commissioners, which provides a tax-law perspective on the AIA. (UPDATE: For the Fourth Circuit supplemental briefs on the AIA, which all conclude that the AIA does not bar a challenge to the mandate, see here and here (federal government briefs), here (Liberty University’s brief), here (Virginia’s brief), and here (Pacific Legal Foundation/Steven Willis). There are some differences in the way that that the briefs reason toward their conclusion about the AIA, so all are worth examining in forming one’s perspective on the federal taxa AIA arguments. Thanks to Timothy Sandefur for the pointer to the PLF letter brief and to the ACA Litigation Blog for hosting the briefs.)
(5) Judge Motz’s thorough analysis provides plausible legal responses to some of the more policy-influenced arguments put forth by the federal government, the plaintiffs, and the dissent.
(6) The mandate challenges are the kind of case in which “technicalities” like the AIA can be given by short shrift, when the parties on both sides want a merits resolution and judges want to contribute their analysis of the merits (as evidenced by the proliferation of opinions at the appellate level).