Does the Anti-Injunction Act Apply?
Oral arguments before the United States Supreme Court commenced
today regarding the constitutionality of certain provisions of the
Patient Protection and Affordable Care Act ("ACA").
Today's oral argument focused on whether it is proper for the
Court to be hearing this case at this point in time (i.e., whether
the case is "ripe"). This threshold issue arises in
connection with the Anti-Injunction Act, a statute enacted in 1867,
that forbids parties from challenging taxes in court unless such
taxes have already been assessed and paid. This is a key issue to
any challenge to the individual mandate in the ACA because
penalties/taxes for violations of the mandate would not be
triggered until 2015, the first year that penalties for not having
ACA compliant coverage could be assessed. Thus, if the Court finds
that the Anti-Injunction Act applies, the Court could not rule on
the mandate until 2015 at the earliest, long after insurance
companies, employers, states, individuals, and regulators would
have been forced to comply with the ACA. Both the US government and
the challengers of the ACA are arguing that the Anti-Injunction Act
does not apply, presumably so the Court will hear the case now,
rather than several years from now. Because both parties agree on
this issue, the argument in favor of the application of the
Anti-Injunction Act was made by Court-appointed counsel.
While the Court-appointed counsel argued that the Anti-Injunction
Act applies to the current case, the justices seemed skeptical.
Justice Breyer noted that the ACA does not use the word
"tax" but rather "penalty" and that the
relevant provisions are not part of the Internal Revenue Code.
Justice Ginsburg noted that the ACA penalties are not a
revenue-raising measure because if the mandates are successful, no
one will pay the penalty and no revenue will be raised. Justice
Scalia also weighed in on the jurisdiction question, noting that
"unless it's clear, courts are not deprived of
jurisdiction, and I find it hard to think that this is clear."
Most scholars weighing in on this issue expect that the Court will
rule that the Anti-Injunction Act does not apply to this case.
Oral arguments will continue tomorrow and will address the central issue of the constitutionality of the individual mandate. On Wednesday, the Court will hear arguments on whether other parts of the law should be invalidated if the individual mandate is found to be unconstitutional, and the challenge to the ACA provision expanding the Medicaid program for the poor.
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