Argument over Anti-Injunction Act argument time highlights fissures in anti-AIA arguments offered by the federal government and the challengers

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 Anti-Injunction Act and section 5000A of the tax code (aka “the individual mandate”)–my new paper addressing the puzzle of congressional inactivity

I recently posted to SSRN a draft version of the paper that arose out of my participation in the “Everything But the Merits” symposium on the healthcare litigation held at the University of Richmond School of Law last November (11/11/11). The papers from the symposium will be published in the March 2012 issue of the University of Richmond Law Review.

The title of my paper is The Anti-Injunction Act, Congressional Inactivity, and Pre-Enforcement Challenges to Section 5000A of the Tax Code.

Abstract below.

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If a member of an Indian tribe has no standing to challenge the minimum coverage provision, does Mary Brown?

In the previous post, I asked whether a member of an Indian tribe has standing to bring a constitutional challenge to the minimum coverage provision in § 5000A of the tax code (aka the “individual mandate in Obamacare”). A member of an Indian tribe is in an unusual position under § 5000A. She is obligated to have minimum essential coverage, but she is exempt from the penalty for non-compliance. See 26 U.S.C. § 5000A(e)(3). Assuming that the penalty for non-compliance is the only legal consequence for not having minimum essential coverage, I do not see how she would have standing to bring a constitutional challenge to the requirement that she have minimum essential coverage.

If that is right, then what about Mary Brown? She is one of the private plaintiffs in the constitutional challenge to § 5000A to be decided by the Supreme Court. Ms. Brown’s lawyers have notified the Supreme Court that she has filed a petition for bankruptcy. Although there is not enough public information to make a conclusive determination, Ms. Brown’s financial situation probably qualifies her for a penalty exemption in § 5000A(e). If Ms. Brown does fall within one of the penalty exemptions, are there any arguments to support her standing that differ from those available to the member of an Indian tribe?

One that comes to mind is that financial circumstances are subject to change, whereas tribe membership is stable throughout one’s life. If a person’s qualification for exemption varies from month to month, then that person comes in and out of the legal crosshairs of someone with whom one can have a justiciable controversy. This difference is relevant, because someone permanently exempt has no legal adversity with anyone that would give rise to a justiciable controversy. The sometimes-exempt person, by contrast, sometimes does have such legal adversity.

The justiciability problem posed by a sometimes-exempt person is best thought of as a mootness problem rather than a standing problem. The general rule is that standing is assessed as of the time of filing. If the sometimes-exempt person was not exempt as of the time of filing, and the person otherwise had standing, then a change giving rise to that person’s exemption presents a problem of mootness. That doctrine is more flexible than standing. In Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (2000), for example, Justice Ginsburg’s opinion for the Court expressed openness to an “argument from sunk costs.”

That is as far as I’ve taken the analysis for now. As always, I welcome suggestions, corrections, and other comments.

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Do members of Indian tribes have standing to challenge the minimum essential coverage provision?

If the government imposes a legal duty on you, but provides no sanctions for non-compliance (and there are no collateral legal consequences of any sort for non-compliance), do you have standing to challenge the imposition of the duty? That is one question posed by Section 5000A of the tax code, the provision in the Affordable Care Act more popularly known as the individual mandate.

Section 5000A requires “applicable individuals” to have “minimum essential coverage,” and it imposes a penalty on some “applicable individuals” who do not have “minimum essential coverage.” That is, there are some people who are required to have insurance but who are exempt from the penalty for not having it Members of Indian tribes, among others, are beneficiaries of this exemption.

Suppose a member of an Indian tribe wanted to sue the federal government to have the insurance requirement declared unconstitutional. Would he have standing to do so? I have trouble seeing how he would. It is not enough to be subject to allegedly illegal conduct. That conduct must cause injury. If non-compliance with the insurance requirement has no consequences for a member of an Indian tribe, then it does not cause any injury. Perhaps the would-be plaintiff can argue that he will buy insurance to comply with the requirement if it is constitutional because he wants to be in compliance with the law, but he will not buy the insurance if the requirement is unconstitutional. But that cannot be enough, because the “injury” of being forced to buy insurance is entirely self-inflicted; nobody is forcing the would-be plaintiff to do anything.

A better way of thinking about the “case” or “controversy” problem with a challenge by a member of an Indian tribe to the minimum essential coverage provision is in advisory opinion terms. The request for a constitutional ruling is purely advisory because there is no proper defendant who can be brought before the court and bound by a judgment. Nobody has anything to enforce against the would-be plaintiff, who simply seeks advice about whether the insurance requirement is constitutional.

This analysis would require alteration if there were some collateral legal consequences for non-compliance with the insurance requirement. But if the penalty in § 5000A is the only means by which the insurance requirement has any legal bite, there appears to be no Article III “case” that a member of an Indian tribe can bring offensively to challenge the insurance requirement.

I cannot think of the closest analogue to this situation, and cheerfully invite suggestions, corrections, contrary arguments, and so on.

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The missing argument for Mary Brown’s standing

Just under a month ago, counsel for Mary Brown told the Supreme Court in a letter that her opening brief would explain why she still had standing to challenge the minimum essential coverage provision even though she had recently filed for bankruptcy (and thus would be exempt from the penalty for non-compliance). The opening brief, filed today, asserts that Mary Brown has standing, but provides no argument in support of the claim. With respect to Mary Brown’s standing, the brief states as follows:

After the parties filed their certiorari petitions, Petitioner Brown, whose standing had been conceded by the Government in the Eleventh Circuit (id. 8a), filed a voluntary petition for bankruptcy. See Letter from G. Katsas to D. McNerney (Dec. 7, 2011). Private Petitioners do not believe that Brown’s pending bankruptcy undermines her standing; to the contrary, her worsened financial state exacerbates the degree to which future costs from the mandate are “immediately and directly affect[ing]” her “financial strength[] and fiscal planning.” Clinton v. City of New York, 524 U.S. 417, 431 (1998).

If this is the promised argument, it is sorely lacking. Do the challengers plan on making an argument elsewhere, or do they have no argument to make? The argument should start with an explanation of what future costs imposed by law directly affect the planning of someone who appears to be exempt at present from any future cost imposed by Section 5000A.

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