Roberts did not “tip his hand” today and suggest that the PPACA is valid under the taxing power

The lead story this evening at TPM bears the headline “John Roberts May Have Tipped His Hand on ‘Obamacare’ Reasoning.” The gist is that the Chief Justice’s dismissal of the challengers’ contention that the insurance requirement and tax penalty in 26 U.S.C. 5000A are inseparable “may have opened the door to finding that Congress’ power to impose the mandate springs from its broad taxing power.”

I disagree with this characterization. If anything, the government’s taxing power position looked weaker after today’s arguments than before.

In suggesting that Section 5000A is an integrated whole for purposes of evaluating the applicability of the Anti-Injunction Act, Chief Justice Roberts first described the suit as one to challenge penalties, not taxes, then said that the label makes no difference, and concluded by stating that it makes no sense to separate the punishment from the crime. To the extent such statements suggest a position on the taxing power, it goes against the federal government–particularly the language of punishment and crime. Here’s the interchange:

CHIEF JUSTICE ROBERTS: The whole point -­ the whole point of the suit is to prevent the collection
of penalties.

MR. KATSAS: Of taxes, Mr. Chief Justice.

CHIEF JUSTICE ROBERTS: Well, prevent the collection of taxes. But the idea that the mandate is something separate from whether you want to call it a penalty or tax just doesn’t seem to make much sense.

MR. KATSAS: It’s entirely separate, and let
me explain to you why.

CHIEF JUSTICE ROBERTS: It’s a command. A mandate is a command. Now, if there is nothing behind the command, it’s sort of, well, what happens if you don’t follow the mandate? And the answer is nothing, it seems very artificial to separate the punishment from the crime.

For balance, the TPM piece quotes challenger-lawyer Randy Barnett, and I think he has it exactly right: “The only thing I think Chief Justice Roberts was expressing resistance to was our argument that the mandate was separate from the penalty for purposes of the [Anti-Injunction Act]. . . . That is only one of the bases on which the AIA does not foreclose consideration on the merits. I don’t think he was signaling anything at all about the constitutionality of the mandate penalty, the subject of tomorrow’s argument. If he was, however, I expect to get a much better sense of that tomorrow so we won’t have to wait long to find out.”

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The jurisdictionality of the AIA and Justice Scalia’s remarks about “a parade of horribles”

Various reports on today’s oral arguments about the Anti-Injunction Act attribute a position to Justice Scalia that is the opposite of what he apparently holds with respect to the jurisdictionality of the AIA. These reports take apparently sarcastic comments at face value.

The comments came in an intervention by Justice Scalia apparently aimed at helping the amicus curiae, Robert Long, respond to Justice Sotomayor’s question (following up on Justice Alito’s) about the negative consequences of holding that the AIA is not jurisdictional:

JUSTICE SOTOMAYOR: Assuming we find that this is not jurisdictional, what is the parade of  horribles that you see occurring if we call this a mandatory claim processing rule? What kinds of cases do you imagine that courts will reach?

One response was that the government could mistakenly forfeit the AIA by failing to raise it. When Justice Sotomayor pressed Long further, Justice Scalia interposed and introduced another argument based on the undesirability of empowering judges to create equitable exceptions that could interfere with tax collection:

JUSTICE SOTOMAYOR: Assumes the lack of  competency of the government, which I don’t, but what other types of cases?

JUSTICE SCALIA: Mr. Long, I don’t think you  are going to come up with any, but I think your response  is you could say that about any jurisdictional rule. If  it’s not jurisdictional, what’s going to happen is you  are going to have an intelligent federal court deciding whether you are going to make an exception. And there will be no parade of horribles because all federal courts are intelligent. So it seems to me it’s a question you can’t answer. It’s a question which asks “why should there be any jurisdictional rules?” And you think there should be.

The write-ups of this portion of the argument at Thomson Reuters, SCOTUSBlog, National Law Journal, and Huffington Post report Justice Scalia’s statement as if he were endorsing the view that “there will be no parade of horribles.” Although I did not attend the argument and have not listened to the argument to hear the intonation, I think that is mistaken. It is inconsistent not only with views expressed by Justice Scalia elsewhere (as in the conclusion of his concurrence in Sosa v. Alvarez-Machain), but also with his apparent belief that the AIA is jurisdictional (as revealed in his question about a principle that ousters of jurisdiction are narrowly construed).

Most tellingly to one familiar with Justice Scalia’s writings, however, is that the comment came in response to a question about a “parade of horribles.” A couple decades ago, Justice Scalia referred to the misuse of this phrase as one of the “canards of contemporary legal analysis.” See Antonin Scalia, Assorted Canards of Contemporary Legal Analysis, 40 Case Western L. Rev.581, 590-93 (1989-90). The reasons that he gave then illuminate the comments he made today about the jurisdictionality of the AIA:

The reason I say that the “parade of horribles” put-down appeals to the Emersonian school of jurisprudence is this: Just as one cannot conceive of a parade unless one believes in organization, so also one cannot take seriously a jurisprudential parade of horribles unless one believes in the demands of logic and consistency as the determinants of future judicial decisions. The judge without that belief – the judge who does not operate on the assumption that he must decide the case before him on the basis of a general principle that he is willing to apply consistently in future ‘cases – can simply dismiss the predictions of future mischief by quoting Justice Holmes’s reply to Chief Justice Marshall’s venerable dictum that “the power to tax [is] the power to destroy.” “The power to tax is not the power to destroy,” Holmes said, “while this Court sits.” The notion that predicted evils cannot occur “while this -‘Court sits” is comforting, of course, but hardly a response to how they can be avoided without repudiating the legal principle adopted in the case at hand. I would have thought it a better response to Marshall’s dictum that the power to tax the activities of the federal government cannot constitute the power to destroy the federal government so long as the tax is generally applicable and nondiscriminatory – because it is implausible that the state would destroy its own citizens as well. Instead, however, Holmes simply said “not … while this Court sits,” and excused Marshall’s ignorance with the observation that “[i]n those days it was not recognized as it is today that most of the distinctions of the law are distinctions of degree.” (Here Holmes flatters himself and his legal realist disciples. Perhaps it was not as generally recognized, but I am sure Marshall was quite aware of it.) “The question of interference with Government,” Holmes concluded, “is one of reasonableness and degree and it seems to me that the interference in this case is too remote.”

Of course if one is to adopt as the controlling legal principle “reasonableness and degree,” one need fear no parade of horribles. As soon as the result seems “unreasonable,” or goes “too far,” the remaining marchers will be sent home. But what guidance does such a principle provide for the lower courts, and what check is it against the personal preferences of future judges? “Be reasonable and do not go too far” is hardly more informative than “Do justice,” or “Do good and avoid evil.” Once one departs from such platitudes and insists upon an analytical principle that is not value laden, then, and only then, does the parade of horribles become a meaningful threat.

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Assessing the apparent attractiveness of the federal government’s position on the Anti-Injunction Act in the healthcare litigation

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.

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Star-studded Politico panel (plus me) on upcoming health care arguments

I had the privilege this morning to participate as a panelist in the Politico Pro Health Care Breakfast Briefing. My fellow panelists were Walter Dellinger, Tom Goldstein, Neal Katyal, and Nina Totenberg. I enjoyed the morning and think we covered a lot of ground.

Nobody (including me) predicted victory for the challengers. Walter Dellinger predicted (and Neal Katyal agreed) that the Court would uphold the mandate’s constitutionality, that it would not be 5-4, and that Chief Justice Roberts would probably write for the Court. Tom Goldstein also predicted victory for the federal government, but thought that we might see a per curiam opinion. Nina Totenberg predicted that Justice Scalia would vote to hold the minimum coverage provision unconstitutional, but declined to speculate about the outcome overall. I declined to speculate about particular Justices, but expressed the view that the Court would vote to uphold the mandate’s constitutionality if it reached the merits of that issue. As many others have observed, the provision’s challengers go in with what looks to be a 4-1 deficit. The likelihood that they will run the table on the remaining four Justices seems low, especially in light of how the litigation played out in the lower courts. That said, “the experts” were wrong about Lopez and Morrison. Time will tell.

The main issue on which I may have viewed things differently from the other panelists was on the Anti-Injunction Act. While I believe it is more likely than not that the Court will reach the merits of the individual mandate, I think that the textual arguments for the Anti-Injunction Act’s applicability are strong and that the possibility of a majority voting to find the AIA applicable is greater than 20%. My recollection is that at least some of the others (particularly Nina Totenberg and Neal Katyal) thought that the Court would be much more likely to favor prompt review out of a belief that the country needs an answer from the Supreme Court now.

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Connecting the Anti-Injunction Act and Severability: Reflections on SCOTUSBlog preview of AIA Arguments

Over at SCOTUSBlog, Lyle Denniston has a superb preview of the Anti-Injunction Act issues at stake in day one of the health care arguments.

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?

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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 healthcare litigation: facial vs. as-applied challenges, severability, the Anti-Injunction Act, judicial restraint, and state resistance

The papers from the “Everything But the Merits” symposium on the healthcare litigation held at the University of Richmond School of Law last November (11/11/11) will be published in the March 2012 issue of the University of Richmond Law Review. Draft versions of several are now available on SSRN. The paper with the most immediate relevance to the ongoing litigation is Edward Hartnett’s, which addresses the topic of facial and as-applied challenges.

Here are links to the currently available SSRN versions of the papers:

A. Christopher Bryant (Cincinnati), Constitutional Forbearance

Tobias A. Dorsey (Federal Practice), Sense and Severability

Edward A. Hartnett (Seton Hall), Facial and As-Applied Challenges to the Individual Mandate of the Patient Protection and Affordable Care Act

Elizabeth Weeks Leonard (Georgia), The Rhetoric Hits the Road: State Resistance to Affordable Care Act Implementation

Kevin C. Walsh (Richmond), The Anti-Injunction Act, Congressional Inactivity, and Pre-Enforcement Challenges to Section 5000A of the Tax Code

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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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Two related non-merits issues to look at in today’s ACA filings

According to the Supreme Court’s December 8 briefing schedule in the challenges to the Affordable Care Act, the opening briefs are due today with respect to everything but the Medicaid issue. Here are a two related non-merits issues to look at in today’s filings:

1. How does the NFIB’s brief address the standing of the individual plaintiffs? The Wall Street Journal reported back in December on the bankruptcy filing of Mary Brown, who was the only plaintiff that the government conceded had standing to challenge Section 5000A (the minimum essential coverage provision). Ms. Brown’s personal circumstances may render her eligible for an exemption from the penalty for non-compliance with the minimum essential coverage requirement in § 5000A. Earlier this week, the Wall Street Journal reported that the NFIB’s lawyers sought to add as individual plaintiffs two more NFIB members. This is an unusual move, and one that the challengers would not have taken without good reason. (That is not to go so far as to say that the additions should be viewed as an implicit concession about a lack of standing without the to-be-added plaintiffs, only that the lawyers viewed the downside of not seeking to add plaintiffs as higher than the downside of doing so.) In a letter filed with the Supreme Court disclosing Ms. Brown’s bankruptcy, the private plaintiffs said that they would explain in their opening brief why Ms. Brown still had standing. Today is the day they will make good on that promise.
2. How does the court-appointed amicus curiae address the Anti-Injunction Act issue? There are several arguments that Mr. Long can make, and it will be interesting to see his assessment of their relative strength by their positioning in the brief.

These two issues may look unrelated on their face, but there is a connection between the AIA issue and Ms. Brown’s standing. One of the arguments that the challengers have previously advanced is that they are challenging the requirement to have insurance but not the penalty for non-compliance. In their view, the mandate is a “free-standing legal requirement” while the penalty is a means of enforcing it. Presumably, this assertion about the internal separability of §5000A with respect to the mandate and the penalty will also be part of the argument for Ms. Brown’s standing. The argument would presumably be that, although Ms. Brown’s financial hardship exempts her from the penalty (under § 5000A(e)), she is still subject to the legal requirement to have minimum essential coverage.

I’m skeptical that these arguments resting on the internal separability of § 5000A succeed. But I will withhold judgment until I see the best presentation of these arguments in the challengers’ briefs.

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The argument against “constitutional can-kicking” based on the Anti-Injunction Act should be address to Congress, not the courts

Ruth Marcus of the Washington Post argues in an op-ed that a Supreme Court ruling on the constitutionality of the individual mandate should come sooner rather than later. The argument targets some of the prudential reasoning at the end of Judge Kavanaugh’s dissent in Seven-Sky v. Holder while passing over Kavanaugh’s “technical interpretation of the statute.” Marcus argues that “the arguments of Kavanaugh and other advocates of constitutional can-kicking are unconvincing.” Fine. But whatever one’s prudential views about timing, they cannot overcome what a straightforward textual interpretation of the AIA requires. For that reason, advocates of AIA avoidance should aim their arguments at Congress in seeking an exception from the AIA (as I have previously argued).

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Rivkin & Casey can’t wish away the federal tax AIA

David Rivkin & Lee Casey have an op-ed in the Wall Street Journal that contains some misleading argument about the federal tax Anti-Injunction Act (alternate link here). Here are the key paragraphs:

Finally, the Supreme Court has also agreed to consider one of the highly technical arguments raised in the case, whether the federal Anti-Injunction Act (AIA) prohibits a challenge to the individual mandate before the requirement actually takes effect in 2014. This issue has always been a red herring, arising because the government tried to argue that the individual mandate can be justified under Congress’s power to tax, even if it is insupportable under the power to regulate interstate commerce.

Virtually every lower court to consider ObamaCare—both those that have struck down the law as unconstitutional and those that have upheld it—has agreed that the AIA does not apply here. There is every reason to believe that the Supreme Court will do the same. The AIA was designed to protect federal tax-collection activities, generally requiring that a tax be paid before its legality can be challenged in court. The mandate, of course, is not a tax—but an affirmative regulatory requirement. It is enforced by a penalty. The only connection with the federal tax apparatus is that the penalty will be collected by the Internal Revenue Service from tax refunds otherwise due to violators, and its application here would only postpone challenges to the individual mandate to 2014.

A few problems with these two paragraphs:

(1) The federal tax AIA bar does not arise “because the government tried to argue that the individual mandate can be justified under Congress’s power to tax.” In fact, such an assertion is doubly wrong. First, the issue arises because the statutory text of the ACA requires that the tax penalty be assessed and collected in the same manner as other tax penalties that cannot be challenged pre-enforcement because of the federal tax Anti-Injunction Act. Second, Rivkin & Casey’s opposing counsel disclaim a connection between the constitutional justification of the tax penalty as a tax and the operation of the AIA as a bar. Although one would not know it (and would probably think the opposite) from reading the Rivkin & Casey op-ed, the Supreme Court has held that a challenge to a penalty may be barred by the AIA even if the penalty is not “justified under Congress’s power to tax.”

(2) The split on the AIA in the circuit courts of appeals is 2-1, the same as the split on the unconstitutionality of the individual mandate. If these splits were predictive, then Rivkin & Casey should predict that their challenge will lose on the merits.

(3) The connection between the tax penalty for non-compliance with the insurance requirement and the “federal tax apparatus” is not limited to the means of enforcement. The calculation of the penalty (and therefore the assessment of the amount due on one’s tax return) depends on other elements of an applicable individual’s tax return.

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D.C. Circuit upholds individual mandate; panel opinion by Judge Silberman and vigorous jurisdictional dissent by Judge Kavanaugh

The D.C. Circuit’s opinion upholding the minimum essential coverage provision is available here. Brad Joondeph has a quick summary at ACA Litigation Blog. More to come here on the Anti-Injunction Act, which split the panel. Judge Kavanaugh’s dissent is, in my estimation, persuasive and powerfully reasoned. The nature of the 2-1 circuit split on the applicability of the Anti-Injunction Act suggests that, at the very least, the issue is a difficult and close one.

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A closer look at the so-called “AIA waiver” in Helvering v. Davis

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.

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Richmond Law Symposium on Health Care Litigation

As speculation continues to swirl about the timing and ultimate focus of Supreme Court review of the various rulings to date in the healthcare litigation, the time is ripe for consideration of the procedural aspects of that litigation. Although scholarly and popular attention has focused largely on the constitutional merits, the litigation over the healthcare legislation has raised important questions about the role of states as litigants, the distinction between facial and applied challenges, severability, the federal tax Anti-Injunction Act, and other issues. The University of Richmond Law Review’s 2011 Allen Chair Symposium will bring together experts from state government and academia to explore these important but unheralded issues and to situate the litigation in the broader political and regulatory landscape.

The symposium will take place on November 11, 2011 at the University of Richmond Law School. Details on registration and attendance are available here, with more information about the schedule in the conference brochure.

There are three panels scheduled:

9:30 A.M. The Role of States as Litigants in the Mandate Litigation
E. Duncan Getchell, Jr., Solicitor General of Virginia
William F. Brockman, Acting Solicitor General of Maryland
William P. Marshall, William Rand Kenan, Jr., Distinguished Professor of Law, University of North Carolina School of Law

11:15 A.M. Defining the Scope and Legal Effect of the Challenges to the Individual Mandate
Edward A. Hartnett, Richard J. Hughes Professor, Seton Hall University School of Law
Tobias A. Dorsey, Special Counsel for the United States Sentencing Commission (USSC)
Kevin C. Walsh, Assistant Professor of Law, University of Richmond School of Law

2:00 P.M. Situating the Mandate Litigation in the Broader Regulatory and Political Landscapes
Bradley W. Joondeph, Santa Clara University School of Law, Creator of the ACA litigation blog
A. Christopher Bryant, Professor of Law, University of Cincinnati College of Law
Elizabeth Weeks Leonard, Associate Professor of Law, University of Georgia Law

(For those attending the Federalist Society’s National Lawyers’ Convention, sorry for the conflict. Proceedings will be made available via live webcast for any unable to attend, and the papers will be published in a spring edition of the University of Richmond Law Review.)

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D.C. Circuit Judge Brett Kavanaugh may think the Anti-Injunction Act bars pre-enforcement challenges to the individual mandate

Ariane DeVogue of ABC News reports from today’s oral arguments in the D.C. Circuit that Judge Kavanaugh asked a series of questions that may indicate his belief that the federal tax Anti-Injunction Act bars the plaintiffs’ pre-enforcement challenge to the individual mandate. Judge Kavanaugh worked on Ken Starr’s investigation of Bill Clinton and served in high-level positions in George W. Bush’s White House. If he concludes that the AIA bars the challenge, it will be difficult to attribute that conclusion to some sort of left-leaning tendencies in his jurisprudence.

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If it looks to you like I’m left leaning, perhaps you’re the one who needs to drink his V-8

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.

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Reasons to believe that Judges Motz and Wynn might be right about the Tax Anti-Injunction Act, even without studying the statute and authoritative precedents

My impression in thinking about and reading about the Fourth Circuit’s decision in Liberty University v. Geithner is that there are not many people out there who are knowledgeable about the federal tax Anti-Injunction Act and the authoritative precedents interpreting it. I say this not as an authority on the statute, as I assuredly am not. I say it as someone who has tried to stay abreast of the jurisdictional issues surrounding the mandate challenges but who still has lots of catch-up work to do on the federal tax AIA. There are not many out there with pre-existing expertise in this area. Most are learning it as they go, and there’s only so much time in the day. Moreover, many discounted the federal tax AIA after a while and focused on other issues. For example, even after the Fourth Circuit ordered supplemental briefing, I thought it was a signal about the panel’s interest in upholding the mandate as a tax rather than an interest in analyzing the jurisdictional bar, so accustomed had I become to the federal government losing on the issue. Perhaps my perspective is peculiar, but I suspect not.

For those not inclined to spend the weekend tracking down cases interpreting the federal tax AIA (but who believe that the law constrains and that it’s not ideology all the way down), here are some reasons to believe that the Fourth Circuit majority might be right about the AIA:

(1) As Ilya Somin has pointed out and Brad Joondeph has emphasized, a critical piece of Judge Motz’s analysis is the conclusion that “tax” has a broader meaning in the AIA than in analyzing the scope of Congress’s Article I powers. Other courts’ analyses have not adequately accounted for this statutory expansiveness.

(2) The federal government’s initial litigating position was less likely than its later position to be refracted through considerations about how certain arguments would be reported by the media and received by the broader public.

(3) None of the appellate courts had the benefit of an adversarial presentation of the issues. But the Fourth Circuit had the benefit of all the other prior AIA analyses and took the time to address the perceived shortcomings of each.

(4) The Fourth Circuit was able to consider the amicus brief filed (in the D.C. Circuit) on behalf of two former IRS commissioners, which provides a tax-law perspective on the AIA. (UPDATE: For the Fourth Circuit supplemental briefs on the AIA, which all conclude that the AIA does not bar a challenge to the mandate, see here and here (federal government briefs), here (Liberty University’s brief), here (Virginia’s brief), and here (Pacific Legal Foundation/Steven Willis). There are some differences in the way that that the briefs reason toward their conclusion about the AIA, so all are worth examining in forming one’s perspective on the federal taxa AIA arguments. Thanks to Timothy Sandefur for the pointer to the PLF letter brief and to the ACA Litigation Blog for hosting the briefs.)

(5) Judge Motz’s thorough analysis provides plausible legal responses to some of the more policy-influenced arguments put forth by the federal government, the plaintiffs, and the dissent.

(6) The mandate challenges are the kind of case in which “technicalities” like the AIA can be given by short shrift, when the parties on both sides want a merits resolution and judges want to contribute their analysis of the merits (as evidenced by the proliferation of opinions at the appellate level).

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Congress can and should enact a statutory fix for the Tax Anti-Injunction Act defect in the private-party constitutional challenges to the individual mandate

Regardless of what one thinks about the constitutionality of the individual mandate in the Affordable Care Act, there appears to be an emerging bipartisan consensus that (1) its constitutionality should be resolved by the Supreme Court, and (2) the Supreme Court should act sooner rather than later (i.e., by the end of the October 2011 Term rather than in some later term). For example, the news coverage here in Virginia after yesterday’s rulings dismissing Virginia’s challenge and dismissing Liberty University’s challenge included statements urging Supreme Court review by both Republican Governor Bob McDonnell and Democrat Senator Mark Warner (relevant statements quoted below if you don’t want to click through).

In light of yesterday’s rulings, however, there is a real possibility that the Supreme Court could conclude that it lacks jurisdiction to rule on any of the challenges to the individual mandate. Challenges by the states have been dogged by questions about jurisdiction from the outset. The Fourth Circuit’s answer to some of those questions knocked out Virginia’s case. The 26-state mandate challenge in Florida v. HHS has so far dodged jurisdictional bullets because of the presence in that case of private parties, whose standing to challenge the mandate has generally been accepted by the federal courts. But yesterday’s Fourth Circuit ruling in Liberty University v. Geithner has breathed new life into a private-plaintiff jurisdictional problem that the parties to the mandate challenges had left for dead. Specifically, the Fourth Circuit held that the Tax Anti-Injunction Act prohibited individuals subject to the mandate from bringing a pre-enforcement challenge because such a suit was one to restrain the assessment or collection of a tax.

If there is a jurisdictional problem preventing both the private plaintiffs (who are subject to the individual mandate) and the State plaintiffs (who are not subject to the individual mandate) from having a federal court hear their constitutional challenges, then the Supreme Court cannot get to the merits of the mandate challenges any time soon.

One response may be to hope that the Supreme Court reads the Tax Anti-Injunction Act differently from the Fourth Circuit. That response may rest on wishful thinking. I need to study the relevant precedents more closely than I have previously, but Judge Motz’s opinion strikes me as persuasive. (See also the amicus brief filed by two former Commissioners of the IRS, Mortimer Caplin and Sheldon Cohen.)

In any event, there is no need to take a chance and rest the possibility of a mandate-challenge merits decision on speculation about how the Supreme Court will resolve the legal uncertainty about application of the Tax Anti-Injunction Act. The Act sets forth a statutory limitation that Congress can and should change to allow a pre-enforcement challenge to the individual mandate. Importantly, it appears that Congress can make this change effective immediately and can make clear that the change preserves jurisdiction over private-party challenges to the individual mandate that have already been filed. See Hamdan v. Rumsfeld, 548 U.S. 557, 576 (2006) (“We have in the past ‘applied intervening statutes conferring or ousting jurisdiction, whether or not jurisdiction lay when the underlying conduct occurred or when the suit was filed.'”), quoting Landgraf v. USI Film Products, 511 U.S. 244, 274 (1994); see also Landgraf v. USI Film Products, 511 U.S. 244, 274 (1994) (“[I]n Andrus v. Charlestone Stone Products Co., 436 U.S. 604, 607-608, n. 6 (1978), we held that, because a statute passed while the case was pending on appeal had eliminated the amount in controversy requirement for federal question cases, the fact that respondent had failed to allege $10,000 in controversy at the commencement of the action was ‘now of no moment.'”). (My assessment of the legal soundness of a “retroactive” jurisdictional cure is based on just a little bit of digging around thus far, and I have not yet vetted the assessment with others, but the foregoing authorities appear to support it. Critical commentary is, of course, welcome on this or any other aspect of the post.)

In sum: The constitutional merits of the challenges to the individual mandate have divided largely (though not cleanly) along party lines, but there appears to be bipartisan agreement that the merits should be decided soon. 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.

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Statement by Gov. McDonnell (R-VA) on the need for prompt Supreme Court review of the constitutionality of the individual mandate:

“As federal courts across the country continue to come to differing conclusions on the merits of cases arguing the unconstitutionality of the federal health care law, today’s decision further exemplifies why these cases should be expedited to the nation’s highest court.  It is the Supreme Court that will ultimately determine whether the federal mandate on every citizen to purchase health insurance violates the U.S. Constitution.  States and businesses continue to expend time and money and languish in uncertainty as they try to come into compliance with a law that may ultimately be ruled unconstitutional. It is exasperating that the President and the Justice Department oppose a prompt resolution of this case through an expedited appeal.  America needs finality in this case.”

Statement by Sen. Mark Warner (D-VA) on the desirability of prompt Supreme Court review of the constitutionality of the individual mandate:

“This is going to end up getting decided by the Supreme Court and candidly, I hope, the sooner the better. I do believe there are a lot of parts of the health care reform law that make sense. I think there are some parts that need to be corrected.”

[Note: The Warner quotation comes directly from the linked video. The accompanying text misquotes Sen. Warner.]

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