Sunday, March 11, 2012

Why the Anti-Injunction Act may not be an attractive "out" for the Court

Two weeks from tomorrow, the Court will hear argument on the Anti-Injunction Act issue in HHS v. Florida (No. 11-398). And as we approach the upcoming arguments, I hope to post a series of short essays on the cases--though at this point, it is pretty difficult to conjure anything that has not been said, many times over.

The issue I want to explore briefly here is why the Anti-Injunction Act may not be an especially attractive way for the justices to duck the merits. Many (including myself) have said that the Court may find the AIA a handy way to punt the matter for the time being. (Lyle Denniston recently suggested this at the National Press Club event.) The Court has often in its history held that it lacked jurisdiction in a case, ostensibly to avoid deciding a much larger, more controversial constitutional question on the merits. (Think of the recent pledge of allegiance case, where the Court creatively found that Michael Newdow lacked "prudential standing," or even Naim v. Naim, where the Court ducked a state law forbidding "miscegination" in the wake of Brown.) The AIA, many have speculated, could provide the Court a similar "out" here.

But there are a number of complications to resolving this case on purely jurisdictional grounds. Consider the following:

* First, the Court would have to resolve whether the AIA is indeed jurisdictional, or instead can be waived by the parties. The government (though arguing that the AIA is not a bar here) contends that the Act is indeed jurisdictional, and my cursory review indicates it has the better of the argument. But this is a non-trivial matter the Court would have no choice but to decide.

* Second, if the Court concludes that AIA is jurisdictional, and that it does bar the individual plaintiffs' action, the Court would still need to confront whether the AIA applies differently to the states, and does not bar their challenge to the individual mandate. Here, there is less precedent on point, and the matter has been less thoroughly vetted by the briefs (though it is discussed, to be sure).

* Third, if the AIA bars the individual plaintiffs from challenging the minimum coverage provision but does not bar the states' action, the Court would need to address whether the states nonetheless lack Article III standing. (Actually, it could address this before it addressed whether the AIA bars the states' challenge, as both are jurisdictional--again, assuming the AIA is jurisdictional.) And this is a pretty messy question. There is a very strong argument--the one embraced by the Fourth Circuit in Virginia v. Sebelius--that the states do not have standing based on their having enacted so-called "health care freedom laws," which purport to exempt their citizens from any legal obligation to acquire health insurance. But they might well have standing due to an injury-in-fact of more residents enrolling in Medicaid (or more employees signing up for employer-provided insurance provided by the states themselves as large employers) because of the individual mandate. But this factual point--the impact of the minimum coverage provision on enrollment in Medicaid or employer-provided plans--was hardly developed in the record below. So it might be a stretch to find standing on these grounds now that we are at the Court.

* Fourth, as Professor Kevin Walsh has described at length, the states may lack standing here on the alternative statutory ground that an action by a state against the United States seeking to declare the minimum coverage provision unconstitutional is barred by the Declaratory Judgment Act. (This would be a concern to the extent that the states' claim to standing was based on the ACA's preemption of their "health care freedom" laws.)

In short, the AIA hardly provides a clean, uncomplicated way for the Court to avoid the merits. That said, it still might be an attractive option; these things are always relative. My point here is that getting through the principal question being argued--whether the AIA applies to the "tax penalty" imposed under the minimum coverage provision--merely resolves one of several relevant questions. The Court would still need to confront two or three more somewhat tricky questions before dismissing the challenge to the mandate on jurisdictional grounds.