How The Supreme Court Could Punt Ruling On ObamaCare To 2015, Or Later
Last week's opinions from the Fourth Circuit provide an avenue for the Supreme Court to avoid an early ruling on the individual mandate.
Brad Joondeph explains how last week’s ruling from the Fourth Circuit Court of Appeals that the lawsuits challenging ObamaCare were barred because the Plaintiff’s didn’t have standing to challenge the law before it went into effect could push off any final determination of the Constitutionality of the individual mandate until the middle part of the decade at the earliest:
* Judge Motz’s opinion in Liberty University is fairly persuasive. As is the amicus brief filed by former IRS Commissioners Mortimer Caplan and Sheldon Cohen in Seven-Sky v. Holder (available here). I still need to dig deeper into the weeds of the relevant precedent, but it sure seems that the Supreme Court has long held that the definition of “tax” in the AIA is much broader than that permitted by the General Welfare Clause (how else do we understand the twin Bailey cases from 1922?), and that it extends to any exaction collected by the Commissioner in the ordinary course of revenue collection under the IRC (specifically including “penalties”).
* I can envision a differently-motivated collection of five justices who could come together to embrace the conclusion that the AIA strips the Court of jurisdiction. One would surmise there are four votes to uphold the mandate (Ginsburg, Breyer, Sotomayor, and Kagan). All four of these justices may well be amenable to the jurisdictional argument if it prevented the other five from invalidating the ACA. Thus, all it would take is either Kennedy or Roberts to conclude that the Court would be better off not deciding the question for the time being. And one could easily envision either or both thinking along those lines.
* Of course, were the Court to so hold, Congress might well step in to eliminate this jurisdictional bar by amending the AIA (or inserting a specific judicial review provision into the ACA). But by then, the Court would not be able to decide the case until after the 2012 election.
* Again, one could see why a majority of the Court would favor this. If Obama wins re-election, the Court would finally need to address the question. And if the Republicans win the White House and the Congress, much of the ACA might well be repealed, rendering the constitutional dispute moot. The ACA (or at least the individual mandate) would disappear without the Court having to dirty its hands. Regardless, the Court would be no worse off, and perhaps much better off from having stayed out of the fight entirely.
As Joondeph goes on to note, it’s entirely possible that the vast political controversy that has arisen regarding the Affordable Care Act, which the Justice have no doubt taken note of, may provide a motivation for them to put off a final ruling on the case until after the 2012 elections. There are a number of ways they could do this. The simplest would be to delay scheduling in the Thomas More Law Center v. Obama and Florida v. HHS cases long enough so that it won’t be possible to hear them before the end of the October 2011-June 2012 Term. They could do this by requesting additional preferring, requesting additional oral argument on a particular point of law, or simply by just delaying consideration of the Writs of Certiorari long enough that it becomes impossible to schedule hearings before the end of the term.
Or, they could use the Anti-Injuntion Act argument from the Liberty University v. Geithner, which, as Joondeph notes is an “objective, legally viable, and quite technical way of staying out of the fray.” Given the controversy that’s likely to erupt regardless of which side wins, that might just appeal to them. If they do that, then any final resolution of a legal challenge to the Affordable Care Act wouldn’t come until 2016 or so.
Legal merits aside, there may just be five Justices who see the wisdom of dodging this particular political bullet for the time being, and letting the political branches try to sort it out.
Update: Commenter samwide points to this piece by Kevin Walsh:
(4) The Fourth Circuit was able to consider the amicus brief filed (in the D.C. Circuit) on behalf of two former IRS commissioners, which provides a tax-law perspective on the AIA. (UPDATE: For the Fourth Circuit supplemental briefs on the AIA, which all conclude that the AIA does not bar a challenge to the mandate, see here and here (federal government briefs), here (Liberty University’s brief), here (Virginia’s brief), and here (Pacific Legal Foundation/Steven Willis). There are some differences in the way that that the briefs reason toward their conclusion about the AIA, so all are worth examining in forming one’s perspective on the federal taxa AIA arguments. Thanks to Timothy Sandefur for the pointer to the PLF letter brief and to the ACA Litigation Blog for hosting the briefs.)
Walsh was also one of the few legal commentators who pointed out the standing issues that existed in Virginia v. Sebelius, and the Fourth Circuit agreed with his argument in the end.
See also, Walsh, Reasons to believe that Judges Motz and Wynn might be right about the Tax Anti-Injunction Act, even without studying the statute and authoritative precedents.
Note that Kevin Walsh’s argument in The Ghost that Slayed the Mandate carried the day in the dismissal of Virginia v. Sebelius for lack of subject matter jurisdiction.