‘Jurisdiction’
To the general public, all that matters are the headlines, reflecting the bottom line. The universal consensus among reporters who attended the 90-minute Supreme Court argument yesterday on whether an 1867 law called the Anti-Injunction Act bars the Court from considering challenges to the constitutionality of ACA’s individual-mandate provision was that the justices will decide the constitutionality of the mandate provision despite the AIA.
But law geeks like me know that what also matters is how they conclude that the court has “jurisdiction”—legal authority—to decide the constitutionality of the mandate provision. That’s because federal judges are incessantly, and often spontaneously, throwing lawsuits out court, claiming that they lack jurisdiction to hear the case—a trend begun in the 1980s and accelerated exponentially, explicitly and by malignant (as opposed to benign) neglect to reverse lower appellate court rulings, by the conservative legal movement to which a majority of the Roberts and Rehnquist courts adhere.
A key part of the conservative-movement’s federal-courts-have no-jurisdiction-to-hear-any-constitutional-claims-except-the-ones-that-conservatives-want-them-to-hear jurisprudence is that federal-court jurisdiction either exists or it doesn’t, and if it doesn’t it can’t be waived by the parties. So even if neither party claims a lack of federal jurisdiction, the judge, judges or justices in each case must raise the issue themselves if they believe jurisdiction may be lacking. Under the Constitution, Congress decides what types of cases the federal courts have jurisdiction to hear, by enacting “jurisdictional” statutes that either grant or remove federal-court jurisdiction in specific categories of cases, subject only to requirements or prohibitions in other parts of the Constitution. (Actually, the Supreme Court has created several legal “doctrines” out of whole cloth that remove federal-court jurisdiction in various cases, but I’ll leave that for another day.)
The AIA provides that “no suit for the purpose of restraining the assessment or collection of any tax may be maintained in any court by any person.” The ACA’s individual-mandate provision does not become effective until 2014 and the penalty for failure to obtain the minimum insurance will not be assed until April 2015, through income tax filings. Early on in the ACA litigation, the Obama administration claimed that the ACA penalty was a tax and that the AIA therefore removes federal-court jurisdiction to hear the challenge to its constitutionality until 2015, but it soon retracted that claim and now argues that the penalty is, well, just a penalty, not a tax, and that therefore the AIA doesn’t remove federal-court jurisdiction to decide the constitutionality of the mandate and penalty for non-compliance with the mandate until 2015; the Court can decide the issue now.
Three of the four lower federal appellate court panels that have issued rulings in ACA litigation, including the one in the case that the Court is hearing this week that ruled the mandate unconstitutional, agreed. The Supreme Court, in deciding to hear the AIA claim anyway, appointed a private lawyer to argue that the AIA does apply here, because the Justice Department joined the ACA’s challengers in saying that it doesn’t.
Everyone, certainly including me, assumed that the outcome of this “jurisdictional” issue—of whether or not the AIA barred the Court’s consideration of the challenges until 2015—would depend upon whether the Court thinks the penalty is a penalty or instead a tax. And that may prove accurate. But, stunningly (in my opinion), the Court, at the urging of Roberts, might instead say that it doesn’t matter whether the penalty is actually a tax, because the government has waived the jurisdictional claim. “It’s a case quite similar to this in which the constitutionality of the Social Security Act was at issue, and the government waived its right to insist upon the application of this [Anti-Injunction] Act,” Roberts said, referring to Helvering v. Davis, the 1937 case in which the Court upheld the Social Security Act. “So,” Roberts asked, “are you asking us to overrule the Davis case?”
Hmmm. I thought they already had done that.
SCOTUSblog’s incomparable Lyle Denniston provides invaluablereportage and analysis of the different options that emerged from yesterday’s argument on how the Court will remove the AIA as a bar to deciding the constitutionality of the mandate provision.
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This will be cross-posted later today to the Firedoglake blog.
“no suit for the purpose of restraining the assessment or collection of any tax may be maintained in any court by any person.”
now, i don’t know whether the penalty is a tax or merely a penalty. but i do know that it is an “assessment.”
naturally, i would invite you all to my ramblings at the end of Beverly’s last post, but at least consider
Robert Reich’s thoughts:
http://readersupportednews.org/opinion2/272-39/10655-healthcare-jujitsu
t’s a case quite similar to this in which the constitutionality of the Social Security Act was at issue,
yet, somehow Roosevelt did not require americans to buy retirement insurance from the private market.
as for the “obvious” fact that if the government can tax you it can require you to buy something… because a private market purchase is the “same as” a tax… when your reasoning has reached that level of absurdity it is no longer possible to have a reasonable discussion.
a cow is the same as a horse except for the horns.
and the moo.
coberly:
The government has not allowed the public to buy other than what is presently available under the ACA. Your arguement has no merit given every other way to be insured was blocked. Absurdity resides in the merit of the argument proposed. Yours lacks merit
run
feel free to disagree with me.