Paul L. Caron

Friday, February 10, 2012

Walsh: The Puzzle of the Pre-enforcement Challenge to the Individual Mandate of § 5000A of the Tax Code

Kevin C. Walsh (Richmond), The Anti-Injunction Act, Congressional Inactivity, and Pre-Enforcement Challenges to Section 5000A of the Tax Code, 46 U. Rich. L. Rev. ___ (2012):

There is a puzzle surrounding the Supreme Court’s consideration in March 2012 of a pre-enforcement challenge to the “individual mandate,” the provision of the Patient Protection and Affordable Care Act codified at § 5000A of the federal tax code. Republicans and Democrats alike claim to want a prompt, definitive ruling from the Supreme Court about the constitutionality of § 5000A. But the federal tax Anti-Injunction Act (“AIA”) presents a serious potential obstacle to the Supreme Court’s ability to reach the merits of the present pre-enforcement challenges. The AIA is a rule that Congress made. And it is not too late for Congress to make an exception to that rule. The puzzle, then, is this: If there is a congressionally created obstacle to getting a ruling that everyone in Congress seems to want, and Congress can remove that obstacle, then why has it not done so? This contribution to the Everything but the Merits symposium held on November 11, 2011 at the University of Richmond School of Law examines various aspects of this puzzle.

A combination of inertia, ignorance, and uncertainty about how the Supreme Court will rule if it reaches the merits may explain Congress’s failure to act in the face of the serious jurisdictional problem that the AIA may present. Partisans on both sides of the constitutional debate obviously want to win, but only one side can, and both sides prefer a jurisdictional loss to a loss on the merits. It could be, also, that there really is no AIA problem. One seeking an exhaustive analysis of the arguments can look to the briefs filed in the litigation. This symposium contribution presents one simple argument for the applicability of the AIA from the text of § 5000A itself that should be enough to demonstrate why those who want a prompt ruling should have cause for concern.

The costs to delayed review of the AIA’s constitutionality are, at this point, sufficient to justify Congress in acting to avoid it. But if Congress and the Obama Administration do not act, then neither should the Supreme Court strain one way or the other in deciding whether the AIA bars the present pre-enforcement challenges.

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