WASHINGTON -- Sensing that the Supreme Court might get cold feet about making a constitutional ruling on the politically charged health care cases in the middle of a general election campaign, a Republican congressman has proposed a bill that would take away the temptation to dismiss the challenges on a technicality.
In November, the Court agreed to hear five and a half hours of oral argument over legal challenges to the Patient Protection and Affordable Care Act. One of those hours will focus on a defense that would delay a decision on the law's constitutional merits until at least 2015. Earlier this month, Rep. Leonard Lance (R-N.J.) introduced the Americans Need a Health Care Ruling Act to thwart such a defense and force the justices to declare by June whether the law stands or falls.
Three of the four courts of appeals that have already commented on the Affordable Care Act based their decisions on the constitutionality of the act's "individual mandate," which requires virtually all Americans to buy health insurance or pay a penalty on their tax returns. The U.S. Court of Appeals for the 4th Circuit, however, tossed out the case without weighing the mandate's constitutional merits. Instead, the three-judge panel held that the penalty constituted a tax, which triggers a Reconstruction-era law that forbids a person from challenging a tax until that tax has actually been paid.
Rep. Lance has targeted that law, the Anti-Injunction Act of 1867, in his new bill. In doing so, he is not likely to face resistance from the Obama administration. Its lawyers had abandoned the Anti-Injunction Act defense even before the 4th Circuit's Democratic-appointed majority invoked it. The administration stated in its petition to the Supreme Court that the "United States continues to believe that the Anti-Injunction Act does not bar these challenges to the minimum coverage provision." The Supreme Court has since appointed Washington lawyer Robert Long to argue for the Anti-Injunction Act position orphaned by the government.
In a press statement announcing his bill, Lance suggested the Court has a duty to decide the health care cases next year despite the political firestorm a constitutional ruling could spark in the heart of the 2012 campaign season. "If the Supreme Court justices find themselves closely divided on the issue the Court could invoke the Anti-Injunction Act and put off a decision until 2015, when the first taxpayer pays a penalty for not having insurance," Lance warned in the statement.
His bill arrived on the heels of another invocation of that act in a health care challenge, this time in a dissent by Judge Brett Kavanaugh of the D.C. Circuit, a prominent conservative whose opinions hold sway with the Supreme Court's conservative wing.
But in a forthcoming issue of the Yale Law Journal Online, two legal scholars argue that the Anti-Injunction Act by its own terms should not apply to the individual mandate, even if the Supreme Court sides with the minority of lower-court judges to hold that the mandate's penalty constitutes a tax. The Anti-Injunction Act "must be read to bar suits with the immediate purpose of restraining tax assessment or collection," write professors Michael Dorf and Neil Siegel of Cornell and Duke law schools, respectively. "The present challenges do not have such an immediate purpose because the very authority to assess or collect will not exist until long after the litigation is concluded."
Nevertheless, Dorf and Siegel admit that they "cannot know the likelihood that five justices will be persuaded" by the professors' reading of the Anti-Injunction Act. "The solution to this uncertainty," they conclude, is for Congress to "pass a special-purpose statute stating that the [Anti-Injunction Act] does not bar" challenges to the individual mandate until the provision goes into effect in 2014.
"If the political branches were to turn their attention to the matter," Dorf and Siegel argue, "there is good cause to expect that the bill would pass both chambers and be signed into law by the President."
Lance's bill, which fits Dorf and Siegel's description, has attracted a co-sponsor in Rep. Dan Burton (R-Ind.). Lance spokeswoman Angie Lundberg said the congressman would be making a push for the legislation in the new year.
A spokesperson for Rep. Henry Waxman (D-Calif.), ranking Democrat on the House Energy and Commerce Committee, which oversees health legislation, said that Waxman did not have a position on Lance's bill.
If the bill picks up the support that Dorf and Siegel predict, Congress would have to pass it in short order to avoid a lot of wasted words before the Supreme Court: Four briefs on the Anti-Injunction Act are due to the justices between Jan. 6 and March 12.