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.