Health Care Reform at the Supreme Court, Day 1
By Sergio Muñoz, Senior Policy Analyst, Health Policy Project, NCLR
No, we didn’t come up with an entire song set to the School House Rock classic on conjunctions, but maybe we should have. It might have lent more staying power to memories of the Tax Anti-Injunction Act (“Anti-Injunction Act”), the opening topic at hand during Monday’s kickoff to the Supreme Court oral arguments on the constitutionality of the Affordable Care Act (ACA). In a disappointing turn for those who hoped the Anti-Injunction Act might postpone a decision on the ACA until 2015, the Court early on made clear that the applicability of this 1867 law to health care reform was likely a fading and losing argument, its appearance in the ultimate decision is but a footnote.
If the Justices’ apparent skepticism about the relevance of the Anti-Injunction Act is foreshadowing, the first day of the Court’s hearings on the ACA may well have been dedicated to laying the groundwork for a ruling about how to make their ruling. Confused? You aren’t the only one. Yesterday’s discussion of tax law meets jurisdictional law, wrapped up in statutory analysis, was almost predictably and laughably impenetrable. The consequences, however, are sweeping and could decide if this case ends with a whimper and decides nothing, or reaches far more than just health care reform and resets the very nature of American federalism. If yesterday’s hearings were any indication, the former is unlikely. These ACA cases look set to run right over the threshold issue of the Anti-Injunction Act and end with a bang.
So what exactly is the Anti-Injunction Act? Basically, before you can argue with the government about whether you should have to, you gotta pay your taxes. Not to say you can’t do both; you most certainly can. But in order to ensure that the treasury collects what is presumptively owed, almost 150 years ago Congress decided that it was better to have people pay their taxes before they challenge their legitimacy. A commonsense hedge against human nature as it applies to the taxman, if you will.
What Congress in its reasoned judgment determined in 1867 still holds true today: the challenges may be many, but the successful attempts to escape tax liability are exceedingly few. Therefore, exercising its powers under and limited by the U.S. Constitution, through the Anti-Injunction Act Congress denies federal courts the jurisdiction to hear tax challenges before prospective plaintiffs first pay what is due. Why is this relevant to the three ring circus currently underway at the Supreme Court? Well, the individual responsibility requirement that everyone must carry health insurance has at times been referred to as a penalty. But it can also be referred to as a tax. And if it is a tax, then maybe everyone has jumped the gun, the Anti-Injunction Act applies, and a decision on the constitutionality of health care reform has to wait until the first penalty for not having health insurance in 2014 is assessed in 2015.
As a quintessential threshold issue for a case to be decided before a federal court, therefore, the Anti-Injunction Act could have derailed the entire show. And maybe it still will—the argument that the Anti-Injunction Act prevents the Court from even ruling on the constitutionality of the individual responsibility requirement is a legitimate one. If it applies, the Court would not have the authority to rule on the still contentious health insurance requirement that all sides agree is perhaps the linchpin to the entire ACA.
Yet neither those arguing for reform nor those against it chose to argue that the Anti-Injunction Act applies to the individual responsibility requirement, so the Court was forced to appoint counsel to argue that it did. Despite his best efforts—poor guy—none of the Justices seemed particularly convinced. Granted, oral arguments don’t always tip off the contours of the ultimate decision, but in big cases they certainly can provide some clues as to the Justices’ inclinations. And the early reports were on the money: enough Justices appear to want to fully rule on the constitutionality of the most significant advancement in the country’s social and economic fabric in generations and not take the jurisdictional out the Anti-Injunction Act provides.
Indeed, it seems everyone wants to know if the ACA is constitutional as soon as possible. Which makes sense—if you think your ocean liner is going to hit an iceberg, it’s better to turn around sooner rather than later. If yesterday’s pointed remarks by the Justices are any indication, it looks like all of the parties, none of whom wanted the Anti-Injunction Act to apply in the first place, may get their wish after all.
The opening act is over, everyone. On to the main event.
Also, check out a short video of the scene outside the Court.