Saturday, March 24, 2012

Will The Supreme Court Sidestep The Constitutionality of Obamacare?

Ken O’Brien

Almost overlooked in all of the hyperventilating from both sides regarding the Supreme Court’s hearing on the Affordable Care Act is the focus of the first day of proceedings.

Monday’s hearing will be devoted to the applicability of an obscure 1867 law called the Anti-Injunction Act.

The Anti-Injunction Act says simply: “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed.” Shortly after its adoption the Supreme Court held that the lawsuit ban was designed to attack “the evils to be feared if courts of justice could, in any case, interfere with the process of collecting the taxes on which the government depends for its continued existence.”

The Administration initially advanced this as part of its argument on behalf of the Affordable Care Act in lower courts. It subsequently dropped the argument after it was struck down as applicable in several early decisions.

The issue re-emerged however in later appellate decisions. In the Fourth Circuit it was decided that the Anti-Injunction Act was a bar and turned aside Virginia’s challenge of the ACA. The Justice Department, in its own appeal from its loss on the mandate issue in the Eleventh Circuit, suggested that the Court, on accepting review of that case, should direct the lawyers to file briefs on the issue, and appoint an outside lawyer, independent of the parties, to make the argument that the Act should be interpreted as a barrier to the Justices’ review of the mandate’s constitutionality.

In accepting the appeal, the Supreme Court also accepted the Justice Department’s suggestion. It appointed Washington attorney Robert A. Long, Jr. to prepare a brief and argue that the Anti-Injunction Act barred the Court from deciding the challenges to the Affordable Care Act until such time as the mandate and its attendant “penalty” went into effect in 2014.

If Long’s arguments are upheld by the Court (which requested that this argument be made even though neither of the opposing parties was making it) then the whole issue of the constitutionality of “Obamacare” could remain moot until at least 2015.

For those who wish a detailed and informative discussion of the issues involved in this question, I strongly recommend the excellent article, “Argument preview: Health care, Part I — The power to decide?”, by Lyle Denniston in March 20th’s issue of SCOTUSblog.


  1. Replies
    1. You realize that if the Supreme Court takes this route, the Affordable Care Act will remain law until at least 2015 unless it is repealed first?

  2. They just have to ignore the Charter, like Southbridge does, and outspend those challenging it! It's called the Chris Clark school of mismanagement.


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