Friday, September 16, 2011

Clarifying the AIA question

I have had a great deal of off-line correspondence with several readers about the applicability of the Anti Injunction Act to all of the lawsuits challenging the minimum essential coverage provision. Thanks to everyone who has written; it has been extremely helpful.

I remain convinced, at least at this point, that the AIA poses a very serious threat to the Supreme Court's hearing of any challenge to the individual mandate. That said, I think I have a clearer idea of the issues that will determine the resolution of that issue.

* First, and perhaps most important, there is a very real dispute as to whether one should see the mandate (codified at 26 USC 5000A(a)) as a stand-alone legal obligation, or instead merely as part of a provision that, taken as a whole, gives those persons covered by the provision a choice between acquiring health coverage and paying a penalty.

* Second, this matters greatly, for if 5000A(a) is truly a stand-alone legal obligation, it obviously is not a "tax" within the meaning of the Anti-Injunction Act (or the General Welfare Clause). It is a simply command, an "economic mandate" in the words of Randy Barnett.

* Conversely, if the best way to see 5000A is in its entirety, giving "applicable individual[s]" a choice between either (a) buying insurance, or (b) remitting the applicable exaction on their tax return, then the provision might well be a "tax" within the meaning of the AIA, consistent with the reasoning of Judge Motz's opinion in Liberty University.

There is much more to this issue. I think this question functions as a basic threshold, over which all other analysis of the AIA question must cross.