Judge Kavanaugh Shows the Supreme Court How to Duck the Individual Mandate

Judge Silberman’s majority opinion upholding the Affordable Care Act’s individual mandate was largely unexpected. But Judge Brett M. Kavanaugh‘s dissent on jurisdictional grounds should have come as no surprise. As predicted here, Judge Kavanaugh opines that the Anti-Injunction Act bars courts from exercising jurisdiction over challenges to the constitutionality of the individual mandate until a taxpayer pays the penalty for failing to buy health insurance and files a refund suit. That cannot happen until the provision goes into effect in 2014.

The majority held that the individual mandate’s penalty is not a tax and therefore not subject to the Anti-Injunction Act.

Judge Kavanaugh’s analysis might prove attractive to Supreme Court justices disinclined to decide the merits of “these weighty and historic constitutional questions” so close to a presidential election.

Seven-Sky v. Holder, No. 11-5047 (Nov. 8, 2011) (Silberman, S.J., with concurrence by Edwards, S.J., and dissent by Kavanaugh, J.)

From the Majority Opinion:

Taxes and penalties carry distinct meanings in the Code, and Congress has been deliberate when it wants certain penalties to be treated as taxes.

The harms appellants allege–the cost of purchasing health insurance from private companies, and violation of their religious belief that insurance expresses skepticism in God’s ability to provide–exist as a result of the mandate, not the penalty.

The Anti-Injunction Act only bars suits that seek to restrain the IRS’s assessment and collection of taxes. It has never been applied to bar suits brought to enjoin regulatory requirements that bear no relation to tax revenues or enforcement.

[S]ince the Anti-Injunction Act’s obvious purpose is to protect the Government’s fisc, we think the Government’s interpretation–that the Act is no bar to pre-enforcement judicial review–if not a waiver, is at least entitled to deference.

From the Dissent:

The Tax Code is never a walk in the park. But the statutory analysis here leads to a firm conclusion that the Anti-Injunction Act bars this suit.

[T]he Affordable Care Act requires that the tax penalty for failure to maintain health insurance “be assessed and collected in the same manner as an assessable penalty under subchapter B of chapter 68” of the Tax Code. And penalties under subchapter B of chapter 68 in turn must “be assessed and collected in the same manner as taxes.” It follows from those two provisions, taken together, that these Affordable Care Act penalties must be assessed and collected “in the same manner as taxes.” Taxes are insulated from pre-enforcement suits by the Anti-Injunction Act. In order for the Affordable Care Act penalties to be assessed and collected “in the same manner as taxes,” the assessment and collection of these Affordable Care Act penalties likewise must be insulated from pre-enforcement suits by the Anti-Injunction Act.

The majority opinion cites no relevant authority suggesting that courts should defer to the Executive Branch’s interpretation of jurisdictional statutes such as the Anti-Injunction Act. Not even the Executive Branch has argued that it should receive such deference.

The majority opinion argues that the Anti-Injunction Act does not apply when a plaintiff purports to challenge the regulatory purpose or effect of a tax. That is the same reasoning this Court adopted to get around the Anti-Injunction Act in our 1973 decision in Americans United. The problem for the majority opinion here is that the Supreme Court emphatically rejected this Court’s reasoning in that case, calling it “unpersuasive” and “circular.” There is no call for a sequel.

Some have suggested that the Anti-Injunction Act does not apply because these suits have been brought so far in advance of the mandate’s 2014 effective date. But there is no “early-bird special” exception to the Anti-Injunction Act.

There is no “compelling prudential considerations” exception to the Anti-Injunction Act.

To uphold the Affordable Care Act’s mandatory-purchase requirement under the Commerce Clause, we would have to uphold a law that is unprecedented on the federal level in American history. That fact alone counsels the Judiciary to exercise great caution.

Under the Government’s Commerce Clause theory, as it freely acknowledged at oral argument, the Government could impose imprisonment or other criminal punishment on citizens who do not have health insurance. That is a rather jarring prospect. The Affordable Care Act does not impose such criminal penalties. But if we approve the Affordable Care Act’s mandate under the Commerce Clause, we would necessarily be approving criminal punishment – including imprisonment – for failure to comply not only with this Act but also with future mandatory-purchase requirements.

[D]espite the Government’s effort to cabin its Commerce Clause argument to mandatory purchases of health insurance, there seems no good reason its theory would not ultimately extend as well to mandatory purchases of retirement accounts, housing accounts, college savings accounts, disaster insurance, disability insurance, and life insurance, for example. We should hesitate to unnecessarily decide a case that could usher in a significant expansion of congressional authority with no obvious principled limit.

Between now and 2015, Congress might keep the mandate as-is and the President may enforce it as-is. If that happens, the federal courts would resolve the resulting constitutional case by our best lights and would not shy away from a necessary constitutional decision. But history tells us to cross that bridge only if and when we need to. Unlike the majority opinion, I would adhere to the text of the Anti-Injunction Act and leave these momentous constitutional issues for another day–a day that may never come.

Prior Coverage:

See also:

  • Tom Schoenberg & Andrew Harris, Obama Health-Care Law Ruled Constitutional by Appeals Court, Bloomberg (Nov. 8, 2011) (“[Law Professor Kevin] Walsh said Kavanaugh’s dissent shows the jurisdictional issue is still ‘a live one’ and might spur the Supreme Court to seek argument on the Anti-Injunction Act. Both the U.S. and the law’s opponents seeking review said the courts have the authority to decide its constitutionality.”)
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5 responses to “Judge Kavanaugh Shows the Supreme Court How to Duck the Individual Mandate

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