In yesterday’s oral argument on the Healthcare Act, Judge Brett Kavanaugh, one of two Republican-appointed judges on the panel, expressed a “major concern” that the Anti-Injunction Act might bar the current challenge to the legislation. Under that theory, recently adopted by the Fourth Circuit in Liberty Univ. v. Geithner, No. 10-2347 (4th Cir. Sept. 8, 2011), Obamacare’s opponents must wait to challenge the individual mandate in a tax refund suit. That cannot happen until the individual mandate goes into effect in 2014 and individuals who fail to purchase insurance are taxed.
Although the Supreme Court may be more likely to grant cert in another Healthcare case, Judge Kavanaugh‘s views should be of particular interest to anyone trying to read the tea leaves about the Supreme Court’s ultimate resolution of the question. Judge Kavanaugh clerked for Justice Kennedy, who is widely expected to be the swing vote on Obamacare. Whether or not the D.C. Circuit case ever appears before the high Court directly, it gives Judge Kavanaugh the chance to write another bench memo for his old boss, at least on the question of whether an individual taxpayer’s challenge is justiciable. (Other cases involve challenges by States to the Healthcare Act.)
Judge Kavanaugh recently aired his views on the Anti-Injunction Act in his dissenting opinion in Cohen v. United States, No. 08-5088+, 578 F.3d 1 (D.C. Cir. 2009) and again when that case was reheard en banc and decided last July. The AIA 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,” 26 U.S.C. § 7421(a). Relying on that statute, Judge Kavanaugh would have blocked a challenge under the Administrative Procedure Act to the IRS’s procedure for refunding a telephone excise tax. The panel and en banc majorities ruled for the taxpayers, holding that a procedural challenge of this sort is not prohibited by the Anti-Injunction Act because it is concerned with procedure, not “assessment or collection.” In his panel dissent, Judge Kavanaugh wrote,
“[W]e could line Constitution Avenue from this Courthouse to the IRS Building with judicial decisions that apply [the Declaratory Judgment Act], the Anti-Injunction Act, the statutory exhaustion principle, and the ripeness doctrine and hold that challenges to tax laws and regulations must occur in refund suits.”
578 F.3d at 21-22.
The plaintiffs in Seven-Sky v. Holder, No. 11-5047, challenge the Patient Protection and Affordable Care Act on the grounds that the individual mandate exceeds the constitutional power of Congress and violates the Religious Freedom Restoration Act (“RFRA”) of 1993. The other judges on D.C. Circuit panel are Senior Judges Edwards and Silberman.
(Hat Tip: Nedra Pickler and Mark Sherman, Appeals court hears challenge to health care law (AP Sept. 23, 2011))
- Ariane de Voge, Appeals Court Judges Skeptical of Health Care Law’s Defense (ABC, Sept. 23, 2011)
- Margot Sanger-Katz, D.C. Circuit Hears Fourth Big Health Care Case (National Journal, Sept. 23, 2011) (“Kavanaugh [said] on several occasions that he thought it was a very ‘close’ call whether the exact language of the health care law put it in the tax category.”).
- Randy Barnett, Oral Argument in the DC Circuit Mandate Case (Volokh Conspiracy, Sept. 27, 2011) (“While some press accounts have focused on Judge Kavanaugh’s forceful questioning about the AIA—and it was indeed forceful—I thought the government’s counsel was effective in countering his textual analysis to the point where he volunteered that it was a ‘close’ issue. In the end, I feel confident that the AIA issue will not prevail, especially given that both the government and the challengers agree it does not apply for good reasons, and all but 2 federal judges so far have concurred in this assessment.”)
- Barnett, supra (“UPDATE: When I expressed the opinion that, “In the end, I feel confident that the AIA issue will not prevail,” I was speaking of the legal challenges to the ACA as a whole, not to the outcome of the DC case in particular. Judge Kavanaugh’s concerns were serious and genuine, and I am hopeful but not ‘confident’ that the government’s textual arguments, and a nice metaphor offered by the counsel for Seven-Sky, were enough to satisfy him.”).