Ruth Marcus of the Washington Post argues in an op-ed that a Supreme Court ruling on the constitutionality of the individual mandate should come sooner rather than later. The argument targets some of the prudential reasoning at the end of Judge Kavanaugh’s dissent in Seven-Sky v. Holder while passing over Kavanaugh’s “technical interpretation of the statute.” Marcus argues that “the arguments of Kavanaugh and other advocates of constitutional can-kicking are unconvincing.” Fine. But whatever one’s prudential views about timing, they cannot overcome what a straightforward textual interpretation of the AIA requires. For that reason, advocates of AIA avoidance should aim their arguments at Congress in seeking an exception from the AIA (as I have previously argued).
The argument against “constitutional can-kicking” based on the Anti-Injunction Act should be address to Congress, not the courts
November 16, 2011 by Kevin C. Walsh
