Monday, January 9, 2012
Daniel J. Hemel (Editor-in-Chief, Yale Law Journal), How to Reach the Constitutional Question in the Health Care Cases, 64 Stan. L. Rev. Online 39 (2012):
Although the Supreme Court has agreed to hear three suits challenging the 2010 health care reform legislation, it is not at all clear that the Court will resolve the constitutional questions at stake in those cases. Rather, the Justices may decide that a Reconstruction-era statute, the Tax Anti-Injunction Act (TA-IA), requires them to defer a ruling on the merits of the constitutional challenges until 2015 at the earliest. Lower-court judges in two circuits have already adopted this view. In September 2011, Judge Diana Motz of the Fourth Circuit held (for a two-judge majority) that the TA-IA—which provides that “[n]o suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person”—bars courts from considering health care challenges for another three-and-a-half years. In November, Judge Brett Kavanaugh of the D.C. Circuit similarly concluded (in dissent) that the TA-IA prohibits federal courts from exercising jurisdiction over challenges to the health care law for the time being. While it is impossible to know whether a majority of Justices will be persuaded by the TA-IA argument, the Court has instructed the parties to the health care challenges to brief the TA-IA question and has set aside a full hour for oral argument on the issue. More recently, it asked a prominent Washington attorney—Robert Long of Covington & Burling—to appear as amicus curiae in support of the position that the TA-IA applies in this instance. At the very least, these facts suggest that the Supreme Court views the potential TA-IA jurisdictional bar as a serious concern.
Yet even if one thinks that Judges Motz and Kavanaugh correctly interpreted the TA-IA, one might still have pragmatic reasons for wanting the Court to rule on the constitutionality of the health care reform law before 2015. By then, federal and state agencies will have spent millions of dollars implementing the health care reform law, and private enterprises—including small businesses—will have spent millions more. Evidently, the Obama Administration would also prefer that the matter be decided sooner rather than later: although the Justice Department had previously sought to invoke the TA-IA’s jurisdictional bar as a way to fend off challenges to the health care law, the Solicitor General stated in a recent certiorari-stage brief that “[t]he federal government no longer contends that the [Tax] Anti-Injunction Act applies to pre-enforcement challenges to the minimum coverage provision.” Indeed, prior to the Fourth Circuit’s ruling, the Justice Department warned the appellate court panel that “postponing review” of the constitutionality of the health care legislation would create an unnecessary “threat of disruption.”
Fortunately (at least for those who favor a quick resolution to the constitutional questions at stake in the health care litigation), there is a way for the Solicitor General to bypass the TA-IA bar—even if one agrees with the interpretation of the TA-IA adopted by the Fourth Circuit and Judge Kavanaugh. Specifically, the Solicitor General can initiate an action against one or more of the fourteen states that have announced their intention to resist enforcement of the health care law, and he can bring this action directly in the Supreme Court under the Court’s original jurisdiction. Such an action would be a suit for the purpose of facilitating—not restraining—the enforcement of the health care law. Thus, it would open up an avenue to an immediate adjudication of the constitutional challenges.