Posted by Mike Dorf
My latest Verdict column is co-authored with Duke Law & Poli Sci Professor Neil Siegel. In it we argue that the Supreme Court can reach the merits of the challenges to the Patient Protection & Affordable Care Act (ACA), notwithstanding the federal tax Anti-Injunction Act (AIA). Most lower court judges have thus far reached the same conclusion but, we explain in the column, their reasoning is faulty. Based on the arguments that have been put forward so far, the better view appears to be the one taken by the Fourth Circuit and by Judge Kavanaugh, in dissent in the DC Circuit: that the AIA forbids pre-enforcement challenges to the ACA, meaning the law can only be challenged in a tax refund action, which would not be filed until 2015 and might not reach the Supreme Court until 2017.
The parties and courts to have considered the matter thus far have assumed that the question whether the AIA bars the current challenges turns on whether the ACA's exaction for failure to maintain minimum coverage is a "tax" within the meaning of the AIA. Yet as Professor Siegel and I explain in the column -- and as we shall elaborate with more citations and arguments in an essay forthcoming shortly in the Yale Law Journal Online -- the key to the inapplicability of the AIA as a current bar is that the ACA's minimum coverage provision (the so-called "individual mandate") is not yet in effect. Thus, the current lawsuits do not have the immediate purpose of restraining the assessment or collection of a tax, as the AIA requires to trigger its bar. Instead, their immediate purpose is to prevent the assessment and collection authority of the federal government from going into effect at all, or to seek clarification about present and future legal obligations. Under our reading, the case can be heard now whether or not the ACA exaction is a tax under the AIA. We conclude both the column and the academic paper with a call for Congress to enact a special-purpose statute expressly stating that the AIA doesn't currently bar challenges to the ACA. (We will post the paper on SSRN within a week, as soon as we finish one more round of edits.)
Here I want to take a crack at the question of whether, in making this argument, Professor Siegel and I are increasing the risk that the ACA will be held invalid. One might think that delaying Supreme Court consideration of the challenges to the ACA until 2017 would be good for the fate of the ACA because by then the law will have been in effect for several years, people will have gotten used to it, tens of billions of dollars will have been invested in compliance, and so the cost of a Supreme Court decision invalidating it would be higher than the cost of invalidating the ACA before it goes into effect. In this view, delay maximizes the likelihood that the Court will uphold the law, and therefore those who think the ACA is valid (as both Professor Siegel and I do) ought to welcome an interpretation of the AIA that delays adjudication. So why are we offering an interpretation of the AIA that avoids delay?
The short answer is that I think we are right about how best to construe the AIA, and as a scholar, I'm not going to distort my views about the best reading of the AIA just because I don't like the political implications of the best reading of the statute. Yes, policy considerations are relevant to statutory interpretation, but they have to be policy considerations of the sort that the statute makes relevant. Here that means policy concerns about the timing of litigation, regardless of the outcome of that litigation.
In any event, I also happen to think that delay would be harmful on balance for a number of reasons.
1) Even if there is a somewhat greater chance that the ACA would be upheld in 2017 than in 2012, if the Court were to strike down the ACA in 2017, the harm -- in terms of wasted resources -- would be much greater than if the Court were to do so now. Presumably this calculation played some role in the Obama Justice Department having abandoned the argument that the AIA bars adjudication now.
2) But suppose you're more cynical about political motives. Then you might want to ask yourself why the Obama Justice Department is not pressing the AIA argument. After all, it's not as though the argument that the AIA bars the current litigation is frivolous. It persuaded the Fourth Circuit and Judge Kavanaugh. I think that, in addition to wanting to avoid wasteful delay, the Obama Administration believes it's going to win on the merits and therefore wants that judicial victory, which it can translate into a political victory.
3) Speaking of politics, there is a not-so-hidden downside to delaying Supreme Court resolution of the ACA litigation until 2017. Suppose that the Supreme Court holds that it cannot adjudicate the challenges now because of the AIA and that a Republican captures the Presidency in 2012. One could well imagine such a President refusing to enforce the minimum coverage provision on the ground that it is unconstitutional. One doesn't really need much of an imagination because Judge Kavanaugh spelled it out in his D.C. Circuit dissent, speculating that "the President might not enforce the individual mandate provision if the President concludes that enforcing it would be unconstitutional." He then dropped a footnote asserting that "the President may decline to enforce a statute that regulates private individuals when the President deems the statute unconstitutional, even if a court has held or would hold the statute constitutional." He cited a concurring opinion by Justice Scalia, which, in turn, cited a law review article by Judge Easterbrook.
I agree that the President may "non-enforce" a law that he thinks is unconstitutional, but this is an extraordinary power to be used sparingly. Judge Easterbrook via Justice Scalia via Judge Kavanaugh is not talking about the power to enforce-but-not-defend that the Obama Justice Department has exercised with respect to the Defense of Marriage Act. That approach preserves judicial review. No, here the suggestion is to not enforce--even if the Supreme Court were to uphold the ACA.
4) Would a President Gingrich or Romney have the chutzpah to do that after each of them previously supported something very much like the minimum coverage provision of the ACA? I cannot imagine that conscience would be a bar for either, but politics might be, and as a practical political matter, I think it would be considerably easier for a Republican President to refuse to enforce some or all of the ACA on the asserted ground that it's unconstitutional if the Court hasn't yet ruled on its constitutionality than after the Court has upheld the law.
Am I certain about how any of this will play out? Of course not. But I do think that all things considered, early adjudication is the better course -- and as Professor Siegel and I argue, it's also the legal one.