Health Care Reform and the Anti-Injunction Act

This editorial was originally posted on PolicyMic.com on March 14, 2012. It can be found here: http://www.policymic.com/articles/5408/the-supreme-court-s-decision-on-the-affordable-care-act-could-be-impacted-by-the-anti-injunction-act

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As the Supreme Court prepares to start its hearings on President Barack Obama's health care reform legislation (the Patient Protection and Affordable Care Act, or PPACA), it makes sense that conservatives and libertarians are eager for the case to proceed as quickly as possible. After all, any ruling issued before November 2012 will constitute some manner of victory for their cause: A complete overturning of the bill will be celebrated as a vindication of the anti-PPACA position and a humiliation for Obama, a complete upholding of it can be used to freshly galvanize the right-wing base against the president (especially given the failure of party frontrunners Mitt Romney and Rick Santorum to accomplish that task), and a ruling rejecting the individual mandate while maintaining the rest of the measure would force Obama into a fight with Congress over an alternative to the mandate (of which there are at least nine), one that could be used to paint him in an unflattering light at the height of the election season.

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Just as a wealth of potential benefits await opponents of PPACA if the Supreme Court issues a ruling within the next few months, virtually none can be gained through additional delay. Indeed, worse than none — after January 1, 2014, provisions of PPACA will be implemented that will directly benefit large sections of the general public (the subsidization of insurance premiums for single adults and individuals with income up to 400% of the poverty line, the ban on insurance companies discriminating based on pre-existing medical conditions, the expansion of Medicaid eligibility to all individuals with income up to 133% of the poverty line, the establishment of health insurance exchanges), thereby significantly weakening the movement to eliminate the bill.

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In the end, though, none of this should matter to any conservative or libertarian deserving of those titles. If their oft-proclaimed disdain for judicial activism has roots in anything other than partisan rhetoric, they should want all hearings on the matter to be postponed until at least 2015.

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To understand why, one must look back to the days when Andrew Johnson inhabited the White House. According to the Anti-Injunction Act of 1867, courts are prohibited from striking down tax laws before they take effect, with their power strictly limited to handling cases brought to them by plaintiffs who sue the government after paying the tax in question. This directly pertains to the individual mandate, a penalty contained in the Tax Code against individuals who have the financial means to afford insurance but choose not to acquire it (this is to protect patients from having their premiums raised by people who wait until they become sick to obtain coverage). Because the legal opposition to PPACA has predominantly focused on the individual mandate, any postponement of a ruling on that individual measure would need to be accompanied by a delay in the entire case, one that would have to remain in effect until at least 2015 (the individual mandate would come into effect in 2014, making 2015 the earliest year in which a plaintiff could file suit).

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Inevitably, many of PPACA's opponents are seeking loopholes in this legal barrier. One common claim is that because the text of the health bill itself never refers to the individual mandate as a "tax" but instead uses the term "penalty," the Anti-Injunction Act doesn't apply to it. This, of course, ignores that the mandate is not only contained in the Tax Code but is collected by the Internal Revenue Service. The other major argument, as summed up by Paul Clement (an attorney representing the states challenging PPACA), is that "the challenge here is to the mandate, and not the penalty that enforces it." That logic is even more absurd, since the mandate isn't operative without the penalty; indeed, it can't effectively be a "mandate" without the enforcement mechanism of a penalty in place to implement it.

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The hard truth is that the individual mandate is a tax (semantics-based protests to the contrary notwithstanding), and as such falls under the aegis of the same law that has encompassed comparable bills for nearly a century-and-a-half. For the Supreme Court to make an exception in the case of PPACA would be a classic case of judicial activism as defined by Merriam-Webster's Dictionary of Law, i.e., "The practice in the judiciary of protecting or expanding individual rights through decisions that depart from established precedent or are independent of or in opposition to supposed constitutional or legislative intent."

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The good news in all of this is that the Supreme Court has already hired a special lawyer to argue in favor of applying the Anti-Injunction Act to PPACA, which he will begin to do on March 26th. Unfortunately, that doesn't mean that legal precedent will actually be upheld by the judges, at least not if we have a recurrence of the judicial hyperpartisanship that has reared its ugly head in other recent Supreme Court rulings (Bush v. Gore and Citizens United v. Federal Elections Commissioncome to mind). What's more, even if the Supreme Court ultimately is convinced to enforce the Anti-Injunction Act (Chief Justice John Roberts is rumored to be especially likely to be swayed by it), one will still need to be concerned about the reaction within the conservative and libertarian communities. If the hysteria that tarnished the right-wing's response to the campaign to pass PPACA is any indication — from the accusation that it was a "Nazi" bill to the hyperbolic myths about things like "death panels" — there could be quite an ugly backlash.

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Then again, maybe they'll be too distracted by the presidential election to notice or really care that the PPACA hearing was delayed. Or maybe they'll be so focused on another anti-Obama bugaboo that they won't have the energy to expend on this issue.

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Or maybe, just maybe, they'll remember what they ostensibly believe as conservatives.