How to Reach the Constitutional Question in the Health Care Cases

Abstract

Although the Supreme Court has agreed to hear three suits challenging the 2010 health care reform legislation, a Reconstruction-era law known as the Tax Anti-Injunction Act may prevent the Court from reaching the merits of the constitutional challenges. The Tax Anti-Injunction Act prevents plaintiffs from maintaining suits “for the purpose of restraining the assessment or collection of any tax.” If the “individual mandate” to purchase health care insurance is a “tax” within the meaning of the Tax Anti-Injunction Act, courts cannot consider the constitutionality of the mandate until 2015 (at which point the mandate will have gone into effect and individuals will be able to bring refund suits in federal district court without running into the Tax Anti-Injunction Act’s jurisdictional bar). Until then, uncertainty over the constitutional status of the individual mandate may disrupt the federal government’s efforts to implement and ensure compliance with the health care law.

Yet the Tax Anti-Injunction Act is not an insuperable obstacle: this essay suggests that there is a way for the Solicitor General to bypass the Tax Anti-Injunction Act’s jurisdictional bar — even if the Court concludes that the individual mandate is a “tax” within the meaning of the Act. Specifically, the Solicitor General can initiate an action against one or more of the fourteen states that have announced their intention to resist enforcement of the health care law, and he can bring this action directly in the Supreme Court under the Court’s original jurisdiction. Such an action would not be a suit “for the purpose of restraining the assessment or collection of any tax”; to the contrary, it would be a suit for the purpose of facilitating the assessment and collection of a tax. Accordingly, it would not be subject to the Tax Anti-Injunction Act. This essay is the first to point out that the Solicitor General could pave a path toward prompt adjudication of the constitutional question in the health care cases through an affirmative litigation strategy.

Keywords: Supreme Court, original jurisdiction, health care, Tax Anti-Injunction Act

JEL Classification: K1, K10, K19, K2, K23, K3, K30, K34, K39, K4, K40, K41