Section 5000A of the Tax Code is one of the most controversial provisions of federal law currently on the books. It is the minimum essential coverage provision of the Patient Protection and Affordable Care Act ("ACA" or "Act")-a provision more popularly known as the individual mandate. Opponents challenged this provision immediately upon its enactment on March 23, 2010. The Supreme Court is poised to hear arguments about its constitutionality in one of these challenges, just over two years later.
There is a puzzle surrounding the Supreme Court's consideration of these cases. Everyone seems to want an answer to the question of whether § 5000A is constitutional. And, at this point, everyone seems to want an answer as soon as possible. But there is a serious potential problem with the Supreme Court giving the ruling that everyone seems to want. A federal statute known as the Anti-Injunction Act ("AIA") prohibits pre-enforcement challenges to certain exactions that are administered through the machinery of tax enforcement. There are strong arguments that the AIA blocks the current challenges to § 5000A. If the AIA does, in fact, block these challenges, then no authoritative answer to the question of § 5000A's constitutionality can be provided until 2015 at the earliest. The AIA is a rule that Congress made. And it is not too late for Congress to make an exception to that rule. The puzzle, then, is this: If there is a congressionally created obstacle to getting a ruling that everyone in Congress seems to want, and Congress can remove that obstacle, then why has it not done so?
In this "Everything But the Merits" Allen Chair Symposium contribution, I address this puzzle in three ways. First, I consider various explanations for the failure of Congress, thus far, to enact an exception to the AIA that would allow pre-enforcement challenges to § 5000A. I conclude that the best explanation is a dampening of legislative initiative that results from the litigation positions of those who are best situated to appreciate the need for an exception to the AIA. Second, I set forth a simple textual argument for why the AIA does bar the Supreme Court's consideration of the currently pending challenges of § 5000A. The point is not to present an exhaustive analysis. That will be supplied in the litigation, and the Supreme Court will provide an authoritative answer. The point is to present, in a concise manner, one of the principal reasons why the authoritative answer that the Supreme Court very well may provide-should Congress fail to enact an exception-is that the AIA blocks the currently pending preenforcement challenges to § 5000A. Third, I address one of the principal gambits that the challengers have used to get around the AIA-decoupling two judicially inseparable requirements in § 5000A: (1) the requirement to have insurance and (2) the penalty that enforces it. Trying to pull these parts of § 5000A apart is a peculiar move that raises questions about the appropriate unit of analysis in pre-enforcement adjudication. On the one hand, the challengers argue that the minimum coverage provision cannot be severed and that the entire ACA must be rendered unenforceable if the minimum coverage provision is unconstitutional. On the other hand, the challengers argue that they can challenge the requirement to have insurance in § 5000A without necessarily calling into question the enforceability of the tax penalty in the very same section. These claims are not only inconsistent with each other but also with a proper understanding of the federal judicial function of resolving cases and controversies.
Kevin C. Walsh, The Anti-Injunction Act, Congressional Inactivity, and Pre-Enforcement Challenges to Section 5000A of the Tax Code, 46 U. Rich. L. Rev. 823 (2012).