Some challengers to the individual mandate now assert that the federal tax Anti-Injunction Act is not jurisdictional. Instead, they claim, it is a defense. From this characterization, they argue that the government has forfeited the AIA as a bar to the challenges.
The non-jurisdictional characterization of the federal tax AIA faces a number of difficulties, including the text of the statute and its authoritative construction by the Supreme Court as a jurisdictional bar (e.g., Enoch v. Williams Packing & Nav. Co., 370 U.S. 1, 5 (1962) (“The object of § 7421 (a) is to withdraw jurisdiction from the state and federal courts to entertain suits seeking injunctions prohibiting the collection of federal taxes.”); Bob Jones Univ. v. Simon, 416 U.S. 725 (1974) (affirming dismissal for lack of jurisdiction)) . Given these difficulties, it is not surprising to see inventive arguments about “jurisdictionality” appear in the recent cert filings.
One argument advanced by the NFIB in its response to the federal government’s cert petition in Florida v. HHS is that the Supreme Court has previously accepted the federal government’s “express ‘waiver of a defense under’ the AIA’s predecessor statute.” (NFIB BIO at 17, quoting Helvering v. Davis, 301 U.S. 619, 639-40 (1937).) The NFIB’s response does not elaborate too much on this argument–as perhaps may be expected given the setting in which the argument appears.
Although understandable, the absence of elaboration is unfortunate because a look at Helvering v. Davis suggests that the quotation lifted out of it by the NFIB has been misdeployed. The AIA provides that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court.” The suit in Helvering v. Davis was not such a suit. It was a shareholder suit against a corporation to prevent the corporation from paying a tax. As described by the Supreme Court:
This suit is brought by a shareholder of the Edison Electric Illuminating Company of Boston, a Massachusetts corporation, to restrain the corporation from making the payments and deductions called for by the act, which is stated to be void under the Constitution of the United States. The bill tells us that the corporation has decided to obey the statute, that it has reached this decision in the face of the complainant’s protests, and that it will make the payments and deductions unless restrained by a decree.
As the foregoing description indicates, the suit was not a suit brought against the federal government for the purpose of preventing the government from assessing or collecting a tax. Rather, the suit was brought against a corporation for the purpose of preventing it from paying a tax. Given the nature of the suit, it is far from obvious what relevance the government’s position as an intervenor defendant in the case has to the AIA’s status as a jurisdictional bar in Florida v. HHS. The plaintiffs in that case seek declaratory and injunctive relief against the federal government to prevent it from enforcing an exaction administered through the machinery of tax enforcement.