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Posts Tagged ‘Anti-Injunction Act’

The lead story this evening at TPM bears the headline “John Roberts May Have Tipped His Hand on ‘Obamacare’ Reasoning.” The gist is that the Chief Justice’s dismissal of the challengers’ contention that the insurance requirement and tax penalty in 26 U.S.C. 5000A are inseparable “may have opened the door to finding that Congress’ power to impose the mandate springs from its broad taxing power.”

I disagree with this characterization. If anything, the government’s taxing power position looked weaker after today’s arguments than before.

In suggesting that Section 5000A is an integrated whole for purposes of evaluating the applicability of the Anti-Injunction Act, Chief Justice Roberts first described the suit as one to challenge penalties, not taxes, then said that the label makes no difference, and concluded by stating that it makes no sense to separate the punishment from the crime. To the extent such statements suggest a position on the taxing power, it goes against the federal government–particularly the language of punishment and crime. Here’s the interchange:

CHIEF JUSTICE ROBERTS: The whole point -­ the whole point of the suit is to prevent the collection
of penalties.

MR. KATSAS: Of taxes, Mr. Chief Justice.

CHIEF JUSTICE ROBERTS: Well, prevent the collection of taxes. But the idea that the mandate is something separate from whether you want to call it a penalty or tax just doesn’t seem to make much sense.

MR. KATSAS: It’s entirely separate, and let
me explain to you why.

CHIEF JUSTICE ROBERTS: It’s a command. A mandate is a command. Now, if there is nothing behind the command, it’s sort of, well, what happens if you don’t follow the mandate? And the answer is nothing, it seems very artificial to separate the punishment from the crime.

For balance, the TPM piece quotes challenger-lawyer Randy Barnett, and I think he has it exactly right: “The only thing I think Chief Justice Roberts was expressing resistance to was our argument that the mandate was separate from the penalty for purposes of the [Anti-Injunction Act]. . . . That is only one of the bases on which the AIA does not foreclose consideration on the merits. I don’t think he was signaling anything at all about the constitutionality of the mandate penalty, the subject of tomorrow’s argument. If he was, however, I expect to get a much better sense of that tomorrow so we won’t have to wait long to find out.”

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Various reports on today’s oral arguments about the Anti-Injunction Act attribute a position to Justice Scalia that is the opposite of what he apparently holds with respect to the jurisdictionality of the AIA. These reports take apparently sarcastic comments at face value.

The comments came in an intervention by Justice Scalia apparently aimed at helping the amicus curiae, Robert Long, respond to Justice Sotomayor’s question (following up on Justice Alito’s) about the negative consequences of holding that the AIA is not jurisdictional:

JUSTICE SOTOMAYOR: Assuming we find that this is not jurisdictional, what is the parade of  horribles that you see occurring if we call this a mandatory claim processing rule? What kinds of cases do you imagine that courts will reach?

One response was that the government could mistakenly forfeit the AIA by failing to raise it. When Justice Sotomayor pressed Long further, Justice Scalia interposed and introduced another argument based on the undesirability of empowering judges to create equitable exceptions that could interfere with tax collection:

JUSTICE SOTOMAYOR: Assumes the lack of  competency of the government, which I don’t, but what other types of cases?

JUSTICE SCALIA: Mr. Long, I don’t think you  are going to come up with any, but I think your response  is you could say that about any jurisdictional rule. If  it’s not jurisdictional, what’s going to happen is you  are going to have an intelligent federal court deciding whether you are going to make an exception. And there will be no parade of horribles because all federal courts are intelligent. So it seems to me it’s a question you can’t answer. It’s a question which asks “why should there be any jurisdictional rules?” And you think there should be.

The write-ups of this portion of the argument at Thomson Reuters, SCOTUSBlog, National Law Journal, and Huffington Post report Justice Scalia’s statement as if he were endorsing the view that “there will be no parade of horribles.” Although I did not attend the argument and have not listened to the argument to hear the intonation, I think that is mistaken. It is inconsistent not only with views expressed by Justice Scalia elsewhere (as in the conclusion of his concurrence in Sosa v. Alvarez-Machain), but also with his apparent belief that the AIA is jurisdictional (as revealed in his question about a principle that ousters of jurisdiction are narrowly construed).

Most tellingly to one familiar with Justice Scalia’s writings, however, is that the comment came in response to a question about a “parade of horribles.” A couple decades ago, Justice Scalia referred to the misuse of this phrase as one of the “canards of contemporary legal analysis.” See Antonin Scalia, Assorted Canards of Contemporary Legal Analysis, 40 Case Western L. Rev.581, 590-93 (1989-90). The reasons that he gave then illuminate the comments he made today about the jurisdictionality of the AIA:

The reason I say that the “parade of horribles” put-down appeals to the Emersonian school of jurisprudence is this: Just as one cannot conceive of a parade unless one believes in organization, so also one cannot take seriously a jurisprudential parade of horribles unless one believes in the demands of logic and consistency as the determinants of future judicial decisions. The judge without that belief – the judge who does not operate on the assumption that he must decide the case before him on the basis of a general principle that he is willing to apply consistently in future ‘cases – can simply dismiss the predictions of future mischief by quoting Justice Holmes’s reply to Chief Justice Marshall’s venerable dictum that “the power to tax [is] the power to destroy.” “The power to tax is not the power to destroy,” Holmes said, “while this Court sits.” The notion that predicted evils cannot occur “while this -‘Court sits” is comforting, of course, but hardly a response to how they can be avoided without repudiating the legal principle adopted in the case at hand. I would have thought it a better response to Marshall’s dictum that the power to tax the activities of the federal government cannot constitute the power to destroy the federal government so long as the tax is generally applicable and nondiscriminatory – because it is implausible that the state would destroy its own citizens as well. Instead, however, Holmes simply said “not … while this Court sits,” and excused Marshall’s ignorance with the observation that “[i]n those days it was not recognized as it is today that most of the distinctions of the law are distinctions of degree.” (Here Holmes flatters himself and his legal realist disciples. Perhaps it was not as generally recognized, but I am sure Marshall was quite aware of it.) “The question of interference with Government,” Holmes concluded, “is one of reasonableness and degree and it seems to me that the interference in this case is too remote.”

Of course if one is to adopt as the controlling legal principle “reasonableness and degree,” one need fear no parade of horribles. As soon as the result seems “unreasonable,” or goes “too far,” the remaining marchers will be sent home. But what guidance does such a principle provide for the lower courts, and what check is it against the personal preferences of future judges? “Be reasonable and do not go too far” is hardly more informative than “Do justice,” or “Do good and avoid evil.” Once one departs from such platitudes and insists upon an analytical principle that is not value laden, then, and only then, does the parade of horribles become a meaningful threat.

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I’ve finally been able to review the transcript of today’s oral arguments in the healthcare litigation. The federal government’s position on the Anti-Injunction Act appeared to make it through today’s oral arguments with fewer dings than the positions of the amicus curiae and the challengers. The government’s position appears attractive to the Justices because adopting it would enable them to reach the merits without throwing too big of a wrench into the general machinery of tax enforcement. The broader theories advanced by the challengers would pose such a threat, while adopting the amicus curiae’s position would not allow the Supreme Court to reach the merits at this time. The federal government’s position is legally convoluted, but its narrow scope apparently covers many legal blemishes.

The amount of time spent on the jurisdictionality of the provision surprised me. An effect of the apparent division on the Court with respect to that issue may be to render more attractive the federal government’s position that the Act is inapplicable. As the Solicitor General’s response to questioning by Justice Ginsburg revealed, the Court need not decide whether the Anti-Injunction Act is jurisdictional if the Court concludes that it is simply inapplicable to this challenge to Section 5000A.

In part for reasons explored in this post from last October, I was surprised that Chief Justice Roberts characterized Helvering v. Davis as the “biggest hurdle” facing the amicus curiae’s claim that the AIA is jurisdictional. As Justice Breyer and Justice Scalia pointed out in their questioning, Davis was a suit in which the remedy sought was ordering the corporation not to pay the tax. It was not a suit restraining the assessment or collection of a tax even though the United States intervened as a defendant.

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I had the privilege this morning to participate as a panelist in the Politico Pro Health Care Breakfast Briefing. My fellow panelists were Walter Dellinger, Tom Goldstein, Neal Katyal, and Nina Totenberg. I enjoyed the morning and think we covered a lot of ground.

Nobody (including me) predicted victory for the challengers. Walter Dellinger predicted (and Neal Katyal agreed) that the Court would uphold the mandate’s constitutionality, that it would not be 5-4, and that Chief Justice Roberts would probably write for the Court. Tom Goldstein also predicted victory for the federal government, but thought that we might see a per curiam opinion. Nina Totenberg predicted that Justice Scalia would vote to hold the minimum coverage provision unconstitutional, but declined to speculate about the outcome overall. I declined to speculate about particular Justices, but expressed the view that the Court would vote to uphold the mandate’s constitutionality if it reached the merits of that issue. As many others have observed, the provision’s challengers go in with what looks to be a 4-1 deficit. The likelihood that they will run the table on the remaining four Justices seems low, especially in light of how the litigation played out in the lower courts. That said, “the experts” were wrong about Lopez and Morrison. Time will tell.

The main issue on which I may have viewed things differently from the other panelists was on the Anti-Injunction Act. While I believe it is more likely than not that the Court will reach the merits of the individual mandate, I think that the textual arguments for the Anti-Injunction Act’s applicability are strong and that the possibility of a majority voting to find the AIA applicable is greater than 20%. My recollection is that at least some of the others (particularly Nina Totenberg and Neal Katyal) thought that the Court would be much more likely to favor prompt review out of a belief that the country needs an answer from the Supreme Court now.

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Over at SCOTUSBlog, Lyle Denniston has a superb preview of the Anti-Injunction Act issues at stake in day one of the health care arguments.

I have previously argued that there is a straightforward argument for the Anti-Injunction Act’s application to bar the current challenges, and that Congress’s failure to enact an exception should count against the challengers’ and the government’s policy arguments for prompt review. The basic point is that Congress does not think it important enough to act to ensure prompt review, and the Supreme Court should not bend the Anti-Injunction Act to reach the same result.

I have also previously argued (in a piece that NYU L. Rev. published in 2010 but that I posted to SSRN only recently) that severability doctrine is in disarray and that a modified version of the pre-severability-doctrine understanding of partial unconstitutionality can help get constitutional adjudication back into shape.

There is a connection in the litigation between the judicial role that follows from failure to apply the Anti-Injunction Act and the difficulties that will confront the Supreme Court if it needs to decide the severability of the minimum essential coverage provision.

When it applies, the Anti-Injunction Act channels judicial involvement to a post-enforcement setting. The constitutional question at issue in a post-enforcement setting is whether the statutory provision giving rise to an obligation to pay an exaction–26 U.S.C. 5000A–is constitutional. If an individual succeeds in demonstrating that the provision is unconstitutional, it does not follow that any other provision of the PPACA is no longer enforceable. The Court need not ask, much less answer, the severability question in such a setting.

The pre-enforcement setting is much different, in a way that underwrites an avowedly legislative conception of judicial review. The challengers ask the Supreme Court to excise the minimum essential coverage provision and then decide whether the rest of the PPACA should continue to be enforceable. The pre-enforcement setting obscures the judicial nature of the “judicial review” sought, risking collapse into constitutional review of the statute more generally, rather than a properly judicial act of deciding what law governs in the course of resolving a case or controversy. In fact, the challengers have gone so far as to assert that they are challenging the requirement to have insurance entirely apart from the penalty attendant upon failure to comply with the requirement. That sounds an awful lot like constitutional court abstract review rather than federal court concrete review.

By underwriting a departure from the concrete review of the anticipated application of a particular statutory provision to a particular person, the pre-enforcement setting of HHS v. Florida transforms the expected judicial function into one of a thumbs-up or thumbs-down on the legislation considered in itself. If the Supreme Court can consider the legislation in itself, the limitation of its constitutional ruling to the minimum essential coverage provision itself looks somewhat arbitrary. Might as well contemplate enjoining the application of other provisions like guaranteed issue and community rating, right?

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Lyle Denniston at SCOTUSBlog has a post discussing the Solicitor General’s Supreme Court filing that requests additional argument time for the Anti-Injunction Act arguments and sets forth the various parties’ positions regarding the distribution of argument time on the other issues.

While the Solicitor General and the challengers to § 5000A agree that the AIA should not be interpreted to bar the present pre-enforcement challenges, they disagree on why. The DOJ has offered a narrow argument, focused on specific features of § 5000A. While the challengers agree with this narrow argument, they also offer broader arguments that the DOJ sees as a threat to its long-term institutional interest in the proper application of the Anti-Injunction Act:

The Government and both sets of respondents take the position that, contrary to the submission by the amicus, this suit challenging the constitutionality of the minimum coverage provision is not barred by the AIA. All the parties therefore seek the same bottom-line result on this issue – i.e., a holding that the AIA does not bar the Court from considering the merits of that challenge. But the Government, alone among the parties, has a critical long-term institutional interest in the sound application of the AIA, because the Government has been and will continue to be the defendant in numerous cases in this Court and the lower courts in which the AIA is at issue. It therefore is important that there be an opportunity for counsel for the Government to present, and for the Court to consider, a full explanation of the Government’s position, which will be afforded by our proposed allocation. By contrast, respondents’ primary interest in the AIA issue is that this particular case should be permitted to proceed – a position with which, as noted above, the Government agrees.

The nature of the arguments presented by the parties further supports the allocation of argument time proposed above. The Government argues that the text of 26 U.S.C. 5000A (Supp. IV) as added by the Affordable Care Act, when read together with other relevant provisions of the Internal Revenue Code, does not trigger the AIA’s bar. Respondents have not taken issue with that submission, and they will receive full relief on the AIA issue if the Court agrees with it, because the Court in that event would be able to consider the challenge to the constitutionality of the minimum coverage provision. But respondents also advance additional, and broader, arguments in support of the proposition that the AIA does not bar their suits. States Cert.-Stage Br. 14- 18; NFIB Cert.-Stage Br. 14-16. The Government does not agree with those additional arguments by respondents, which in the Government’s view are contrary to the text, purposes, and judicial construction of the AIA. See Gov’t Cert.-Stage Reply Br. 2-11. Counsel for the Government therefore must have sufficient time at oral argument not only to advance the Government’s position that the AIA does not bar respondents’ challenge to the minimum coverage provision and to oppose the amicus’s contrary position, but also to oppose respondents’ additional arguments against application of the AIA. Respondents, by contrast, will have no need to devote any of their argument time to opposing the Government’s argument for why the AIA does not bar their challenge.

SG Motion for Additional Time for Oral Argument and for Allocation of Argument Time Nos. 11-393, 11-398, 11-400 (emphasis added).

My own view–formed without the benefit of the anti-AIA briefs to be filed soon–is that the federal government and the challengers are both wrong and that the AIA does bar a pre-enforcement challenge to § 5000A of the tax code (a/k/a the individual mandate). The federal government properly opposes the challengers’ broader rationales for disregarding the AIA. But the federal government’s change of position on the AIA is difficult to square with the text of § 5000A and the congressional design that it reflects. And it is easy to see how both political and pragmatic considerations, rather than straight-on legal analysis, drove the federal government to switch from initially arguing that the AIA does bar pre-enforcement challenges to the present position that it does not.

It may also be worth noting that the push for both sets of challengers to have argument time on the AIA is yet another unfortunate consequence of the Eleventh Circuit’s decision not to address the States’ lack of a justiciable challenge to the individual mandate. (For argument in support of this claim, see my Eleventh Circuit amicus brief in Florida v. HHS or section II.D of The Ghost that Slayed the Mandate.)

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The papers from the “Everything But the Merits” symposium on the healthcare litigation held at the University of Richmond School of Law last November (11/11/11) will be published in the March 2012 issue of the University of Richmond Law Review. Draft versions of several are now available on SSRN. The paper with the most immediate relevance to the ongoing litigation is Edward Hartnett’s, which addresses the topic of facial and as-applied challenges.

Here are links to the currently available SSRN versions of the papers:

A. Christopher Bryant (Cincinnati), Constitutional Forbearance

Tobias A. Dorsey (Federal Practice), Sense and Severability

Edward A. Hartnett (Seton Hall), Facial and As-Applied Challenges to the Individual Mandate of the Patient Protection and Affordable Care Act

Elizabeth Weeks Leonard (Georgia), The Rhetoric Hits the Road: State Resistance to Affordable Care Act Implementation

Kevin C. Walsh (Richmond), The Anti-Injunction Act, Congressional Inactivity, and Pre-Enforcement Challenges to Section 5000A of the Tax Code

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