One of the top stories currently running at The American Spectator is “Obamacare’s Last Best Hope”, by David Catron. The bio describes Mr. Catron as a “health care revenue cycle expert” who blogs at Health Care BS (which is devoted to “cleaning the Augean stables of the health care debate”). Mr. Catron may know much more about health care finance than I do, but he is confused about the federal tax Anti-Injunction Act (“AIA”) and why one might be willing to conclude that it blocks pre-enforcement challenges to the individual mandate.
Let’s begin with the paragraph that drew my attention:
Some left-leaning legal scholars see a ray of hope in the Liberty v. Geithner ruling because Judge Diana Motz, the Clinton appointee who resurrected the tax issue, invoked the Anti-Injunction Act (AIA). AIA forbids legal challenges to taxes before they go into effect and the IRS has tried to collect them. Because the mandate doesn’t take effect until 2014, experts sympathetic to “reform” hope this new perspective will cause the Supreme Court to put off its encounter with ObamaCare. According to Kevin C. Walsh, who teaches law at the University of Richmond, “[T]he Supreme Court could conclude that it lacks jurisdiction to rule on any of the challenges to the individual mandate.” And, considering the denunciations to which the Court was subjected pursuant to Bush v. Gore, the justices may indeed be reluctant to join the judicial fray in 2012.
It’s peculiar that I am the only “legal scholar” mentioned in this paragraph about “left-leaning legal scholars” who are “sympathetic to ‘reform'” and hope that the AIA “will cause the Supreme Court to put off its encounter with ObamaCare.” I will leave to others to judge whether I am “a left-leaning legal scholar.” I think it’s safe to say, however, that Mr. Catron’s sole reason for tagging me as such is because I think the Fourth Circuit got the AIA question right in Liberty University v. Geithner. For better or worse, Mr. Catron can infer whatever he likes from my view on this jurisdictional question. But he should at least get that view right. The post of mine that he links in his piece advocates congressional action to lift the AIA bar for these challenges. That’s not the kind of move one advocates while simultaneously hoping that the Supreme Court will “put off its encounter with ObamaCare.” As I explained in that same post (which Mr. Catron apparently has not read): “A legislative fix to the Tax Anti-Injunction Act can eliminate a jurisdictional barrier that presents a serious possibility of causing extensive delay. Congress can and should get rid of that barrier and clear the way to prompt Supreme Court resolution of the constitutional challenges to the individual mandate.”
Mr. Catron concludes by observing that the Department of Justice ” must make the case that, the President’s prevarications notwithstanding, the mandate is indeed a tax. If they can get over that bar, plus make the sale on Judge Motz’ AIA theory, there is a chance that ObamaCare and its mandate will survive — until November 6, 2012.” This analysis confuses two issues: (1) whether the mandate is a tax under the Constitution; and (2) whether a challenge to the mandate is barred by the federal tax Anti-Injunction Act. It may be counter-intuitive to treat these as two different issues, but sometimes the law is counter-intuitive. And on this point, the law is clear. The AIA can bar a pre-enforcement challenge to the mandate even if the monetary exaction for non-compliance is a “penalty” rather than a “tax” under the Constitution.
Rather than speculating about political or ideological leanings, Mr. Catron may wish to get straight on the law and consider the possibility that some of us who think that the Fourth Circuit was right about the AIA hold that view because a close look at the relevant legal authorities suggests as much. An analysis along those lines wouldn’t make for good copy or allow one to suggest that the President is a liar, but it may actually be true and help people understand the issues.