"Punting" via the Tax Anti-Injunction Act

[Steven Jamar]

I suppose it could do all these procedural things and it could apply precedent in narrow syllogistic way.  But it won't.  It will decide whether or not this sort of exercise of power is appropriate under our constitutional structure and using political ideology about the proper balance between federal and state power with some individual liberty concerns tossed in as leavening.

It will publish a decision that will (as always) try to make it sound like the court is applying rules in a syllogistic way and will make analogies to cases it deems similar enough and distinguish those that are troublesome.

The task for the lawyers is to motivate the court to decide their way using legal and political principles and secondarily to show a path through the case law to reach the desired result.

As has been shown in this discussion (and in law review articles and briefs to the court) there are numerous paths through the law to reach either result on the mandate.  The tax is a tax, or else my homeowner's mortgage credit is not a proper exercise of power.  The spending is spending for the general welfare or else the innumerable spending programs are not proper.  The regulations as to what clauses in insurance contracts are allowed are permissible or the Moss Magnuson act is unconstitutional.

The whole of the ACA is constitutional and the means chosen fit perfectly within the N&P clause as means to accomplilsh the ends of regulating health care costs and health insurance -- or is anyone seriously contending (other than Justice Thomas) that those are not within the commerce clause power?

But the court could do as it has done in a variety of federalism contexts and make new law -- as in Lopez and Seminole Tribes.  It could decide the mandate is a step too far and then explain it using the novel and clever (but to my mind bogus) inactivity theory.  But that will not be the basis on which the case will be decided.

I would like to think that it will be decided on principles other than what impact it may or may not have on Obama, but at least a few of the judges have shown antipathy to Obama and even a willingness to decide cases on purely partisan political grounds.

Steve



On Mar 22, 2012, at 1:38 PM, Conkle, Daniel O. wrote:

> I think the Court could find that the Affordable Care Act’s “penalty” is a “tax” for purposes of the Tax Anti-Injunction Act but (in later litigation) still find that it is regulatory and therefore not a “tax” for purposes of the congressional taxing power.  Thus, I think the Court could defer the constitutional challenge for now, citing the Anti-Injunction Act, without necessarily signaling how the constitutional question should ultimately be decided.
>  
> In my view, deferring the constitutional challenge would be prudent here, given the 2012 election campaign and the ongoing political debate concerning the ACA and especially the individual mandate.  And the Anti-Injunction Act permits the Court to move in this direction.  For anyone who might be interested, I just published an op-ed in Politico to this effect –
>  
> http://www.politico.com/news/stories/0312/74309.html
>  
> Dan Conkle
> ************************************************ 
> Daniel O. Conkle 
> Robert H. McKinney Professor of Law 
> Indiana University Maurer School of Law 
> Bloomington, Indiana  47405 
> (812) 855-4331 
> fax (812) 855-0555 
> e-mail conkle at indiana.edu 
> ***********************************************

-- 
Prof. Steven D. Jamar                     vox:  202-806-8017
Associate Director, Institute for Intellectual Property and Social Justice http://iipsj.org
Howard University School of Law           fax:  202-806-8567
http://iipsj.com/SDJ/


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"Auntie Mame" by Patrick Dennis






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