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?