The Anti-Injunction Act and the Individual Mandate

[Marty Lederman]

Actually, the government argued in the 4th Circuit, and in other courts of
appeals, that the AIA does *not *apply, reversing the view it had adopted in
the district courts.  In its cert. petition in the CTA11 case, DOJ
recommends that the Court ask the parties to brief the AIA issue, but
continues to argue that the statute is not applicable.  The pertinent
excerpt:

We respectfully suggest that the Court direct the parties to address the
applicability of the Anti- Injunction Act, 26 U.S.C. 7421(a), to
respondents’ chal- lenge to the minimum coverage provision. Subject to
certain exceptions, the Anti-Injunction Act provides that “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.” Ibid.

In the district court, the federal government moved to dismiss respondents’
challenge to the minimum cover- age provision on the ground that the
Anti-Injunction Act barred it. The district court declined to dismiss on
that basis, see App. 401a-425a, and the federal government did not challenge
that ruling on appeal. In a supplemen- tal brief requested by the Fourth
Circuit, the federal government explained that it had reconsidered its posi-
tion on this question and had “concluded that the [Anti- Injunction Act]
does not foreclose the exercise of juris- diction in these cases.” Fed.
Gov’t Supplemental Br. at 2, Liberty University, supra (No. 10-2347). The
government also set out the legal basis for its position that the
Anti-Injunction Act does not apply. See id. at 2-9.


The court of appeals in this case did not address the Anti-Injunction Act,
but in two other cases circuit courts did so, reaching conflicting results.
In Thomas More, the Sixth Circuit, consistent with the position of the
United States on appeal in that case, unanimously held that “the
Anti-Injunction Act d[id] not remove [its] ju- risdiction to consider this
claim.” 2011 WL 2556039, at *8. In Liberty University, however, a divided
panel of the Fourth Circuit held that the challenge before it was barred by
the Anti-Injunction Act. See 2011 WL 3962915, at *4-*16.


The United States continues to believe that the Anti- Injunction Act does
not bar these challenges to the mini- mum coverage provision. But the courts
of appeals are now divided on the question. This Court has stated that “the
object of [the Anti-Injunction Act] is to withdraw jurisdiction from the
state and federal courts.” Enochs v. Williams Packing & Navigation Co., 370
U.S. 1, 5 (1962); see Bob Jones Univ. v. Simon, 416 U.S. 725, 749 (1974);
but cf. Helvering v. Davis, 301 U.S. 619, 639-640 (1937) (accepting express
waiver of Anti-Injunction Act by the United States). Under these
circumstances, we believe the Court should consider the applicability of the
Anti-Injunction Act along with the constitutional issues in this case. If,
as we anticipate, respondents take the position that the Anti-Injunction Act
does not bar this suit, the Court should also consider appointing an ami-
cus to file a brief defending the position that the Anti- Injunction Act
does bar this suit, as the majority held in Liberty University. In the event
the Court finds the Anti-Injunction Act inapplicable, it can then decide the
constitutional questions.



On Wed, Oct 12, 2011 at 8:46 PM, William Funk <funk at lclark.edu> wrote:

> The government argued and won on this issue in the Fourth Circuit, but it
> doesn’t appear that they argued the Anti-Injunction Act at all in the Sixth
> or Eleventh Circuit cases, whose cert petitions are pending.  Can anyone
> shed any light on this?****
>
> Bill Funk****
>
> Lewis & Clark Law School****
>
> _______________________________________________
> To post, send message to Conlawprof at lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
> Please note that messages sent to this large list cannot be viewed as
> private.  Anyone can subscribe to the list and read messages that are
> posted; people can read the Web archives; and list members can (rightly or
> wrongly) forward the messages to others.
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.ucla.edu/pipermail/conlawprof/attachments/20111012/f237a311/attachment.html>