Jesus and the Anti-Injunction Act

Abstract

Biblical scholars have debated the story of the resurrection for millennia. Some read the story literally, others with greater consideration to the purpose the story-writers had in reciting the story.

In the recent case of National Federation of Independent Business v. Sebelius. the high priests of the law declared that section 7421 (the Anti-Injunction Act (AIA)) did not bar federal courts from hearing a challenge to what Congress called a penalty, codified in section 5000A. The penalty will be imposed on taxpayers who fail to obtain requisite health insurance starting in 2014.

What is striking to me is the Supreme Court’s literalist approach. The nub of its reasoning is that the AIA only applies to suits involving a tax, and Congress called section 5000A a penalty. Although I understand the desire of all parties — and apparently all the Supreme Court justices — to get to the fun constitutional stuff, the myopic focus on the word ‘‘tax’’ obscures the law. Although the AIA’s purpose cannot be untethered from its words, neither should those words be read in isolation from its purpose. Both text and purpose provide the limits of rational interpretation.

The thesis of this article is by ignoring the purpose of the AIA, as demonstrated by its legal history, the Court's literalist interpretation becomes a mischievous exercise in word-chopping. While I continue to believe that the Court misinterpreted the AIA, my point in this article is that there was a sounder basis for deciding that the AIA did not apply.

Part A of this article gives the legal history of the AIA. Part B sketches out the two issues presented to the Court and how the Court resolved them, showing the tension between a literalist and purposeful interpretation of the statute. Part C considers the practical implications of the Court’s holding for future AIA cases. It points out how some taxpayers can now avoid the AIA, not only regarding the section 5000A penalty but also other ‘‘penalties’’ in the code. It explains how a purposeful approach would have been a superior rationale. Although both a literalist and purposeful approach allow the Court to get to the constitutional merits in this case, their differences, though small, are both profound and perennial — much like the risen Jesus problem.

Keywords: statutory interpretation, legislative history, legal history, Anti-Inunction Act, Supreme Court, interpretation, textualist, literalist, Obamacare, ACA, Affordable Health Care Act

JEL Classification: K10, K34, K42, K40