Will The Supreme Court Punt The Ball

Mar 26, 2012 by PATRICK EDABURN, Assistant Editor

Amid all of the discussion and debate over how the Supreme Court might rule on the validity of the Affordable Care Act there is one topic that has gotten minimal coverage, the possibility that the court might just do…. nothing.

Much of the discussion today will center on a law called the Tax Anti Injunction Act (or TAIA). The law was passed in 1867 and basically says that if a tax law is passed it cannot be challenged until the tax is actually collected. You can debate what the purpose of such a law is, but it could have a serious impact on whether the court actually rules on this case.

The issue at hand is whether the individual mandate and the penalty connected to it are, in effect, a tax. If so then the court could not review the case until the tax is imposed, and since the penalties would not kick in until 2015 then the court would not review the law until then (which with the appeals process could mean 2016 or 2017).

Of the circuit courts that have ruled on the legality of the ACA only one has held that the TAIA applies, the others have said that it does not. In the briefs presented to the court both the attorneys challenging the law and vthose defending it have agreed that the individual mandate is not a tax.

So why do I think the court still might adopt a ruling saying the mandate is a tax ?

Well for one thing, the court actually went to the extra (and unusual) step of hiring additional counsel to argue the issue of whether or not the TAIA applies. When you have a case where both sides agree on an issue it is not normal for the courts to hire outside counsel to argue the point. Of course you could theorize that they felt the need to cover the issue because of the one circuit court ruling, but that could be covered by a couple paragaphs noting that both sides agree it is not a tax.

In addition, while the court is suppose to be apolitical, the fact is they recognize the need to consider social and political impacts of their rulings. For example when the court ruled on school segregation they worked hard to get a unanimous ruling, not for legal reasons but to avoid giving the South something to cling to.

Also there is the idea that whenever possible the court should defer to the political process. In this case there is an election which is going to revolve, at least in part, over the ACA. Some of the justices may feel that it is best to push the ruling down the road to allow the political process to have a hand in the subject.

So how might such a ruling, if it happens, come down ?

The general consensus is that the four liberal leaning justices (Breyer, Ginsburg, Sotomayor and Kagan) would vote to uphold the mandate and the four conservatives (Thomas, Scalia, Roberts and Alito) would at least lean to voting to strike the mandate (though I am not as sure of that) and that swing vote Kennedy would lean to upholding.

From the point of view of the liberals, a holding that the TAIA applies would be good for a couple reasons.

First, it would mean the law remains in effect until the ruling in 2016, at least from a legal standpoint.

Second, since the Constitution gives the Congress the power to tax, it would be much easier for a future court to uphold a mandate held to be a tax.

From the point of view of Justice Kennedy, such a ruling would also be a good option. Besides being a swing vote he has a history of defering to the political process.

Even a couple of the conservatives might be persuaded by such a ruling since it has long been a basic theory of conservative judicial philosophy that we should defer to the political process rather than have rule by the judiciary.

Of course nobody can say for sure what will happen. From what I have been hearing in the news the justices seemed to be skeptical of the ideal the TAIA applied during arguments this morning. But even with my limited experience in the courtroom I can say that you never know what is in a judges mind. They always go after an attorney to push and press to try and poke holes in their argument.

We won’t know what is going to happen until June, but don’t be surprised if the court doesn’t do much at all.

I’ll continue to post on this topic as I am able to listen to the arguments, and will be offering thoughts on what the court will do if they do rule on the case.

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