The U.S. Supreme Court has agreed to consider four key issues at oral arguments this week as it reviews the constitutionality of the Affordable Care Act, the health care reform law passed by Congress in 2010. The National Law Journal has asked practitioners to sound off, pro and con, on those issues: jurisdiction (Anti-Injunction Act and standing), individual mandate, severability and Medicaid expansion.
ANTI-INJUNCTION ACT
ALAN MORRISON
George Washington University Law School
The parties in the Affordable Care Act cases do not agree on much, but they all urge the U.S. Supreme Court to decide whether the ACA’s individual mandate is constitutional. There are, however, two large hurdles that must be surmounted first: the Anti Injunction Act in Section 7421 of the Tax Code, which the U.S. Court of Appeals for the 4th Circuit (and Judge Kavanaugh of the D.C. Circuit in dissent) found applicable, and serious questions about whether the plaintiffs have standing to sue at this time. Both issues have one common core fact: The sole means by which the individual mandate can be enforced is a penalty that is paid only with an individual’s federal income tax, but the first time that anyone will have to make such a payment is in 2015, when tax returns for the year the law becomes effective are due. [Read full text.]
ILYA SHAPIROCato Institute
