April 3, 2012
As we previously reported, Day 1 of last week’s oral argument in the Supreme Court on the challenges to the health care legislation focused on whether the Anti-Injunction Act bars the lawsuits. The excitement about the argument on that issue was largely gone as soon as it was over, because it was fairly apparent that the Court will not find the Act to be an obstacle to reaching the merits of the health care dispute. Indeed, Robert Long, the lawyer who argued as amicus for that position, has predicted that he will not get a single vote. Certainly the argument was almost completely forgotten by the next day when the Court’s questioning on the constitutionality of the individual mandate led many observers to conclude that the mandate will be invalidated. (For the record, my opinion is that the health care legislation will survive, but that topic is beyond the scope of this blog.) Still, the Court’s decision to reject the applicability of the Anti-Injunction Act could have precedential significance, depending on the rationale that the Justices use. Therefore, we briefly recount the argument here with that issue in mind.
There were two basic arguments made for holding that the health care lawsuits could proceed despite the Anti-Injunction Act. The primary argument was that the Act by its terms did not apply – that is, that for a variety of reasons the “penalty” for failing to obtain health insurance is not a “tax” within the meaning of the Anti-Injunction Act. Both the challengers to the health care legislation and the United States took this position. Preliminary to this statutory interpretation question, however, was the argument that the Anti-Injunction Act should not apply in this case — even if the health care penalty would ordinarily come within the ambit of the Anti-Injunction Act — because the government had waived the defense and urged that the lawsuits should proceed. The validity of that waiver argument turns on whether the Anti-Injunction Act is “jurisdictional,” meaning that it addresses a court’s jurisdiction or power to hear a case, as opposed to being a “claim processing rule.”
A court does not have the authority to create its own jurisdiction, even if both parties want it to hear the case. Thus, if a statute is “jurisdictional,” a court is obliged to examine jurisdiction on its own and to dismiss the case if it finds that the statutory conditions are not met. Conversely, if a statutory condition is not jurisdictional, then a party can waive satisfaction of that condition and the court can proceed to hear the case. (For example, many exhaustion requirements or statutes of limitations are not jurisdictional, see Reed Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237 (2010); Day v. McDonough, 547 U.S. 198, 205-06 (2006)). In the health care litigation, although the United States wanted the lawsuits to proceed, it took the position that the Anti-Injunction Act is “jurisdictional” and therefore (in contrast to the challengers to the law) argued that the Court could proceed to hear the case only if it concluded that the Anti-Injunction Act by its terms did not apply to the “penalty” for failing to obtain insurance.
If the Court were to resolve the case on waiver grounds, concluding that the Anti-Injunction Act is not jurisdictional, that could create opportunities for taxpayers in future cases if a government attorney overlooks an Anti-Injunction Act defense. It also would give the government flexibility to assert the defense when it wants, but to allow cases like the health care challenge to go forward if the government determines that it wants a prompt answer. The government, however, is concerned about a holding that the Anti-Injunction Act is not jurisdictional, because courts are freer to adopt equitable exceptions to non-jurisdictional statutes.
At the oral argument, the Justices explored both possible grounds for resolving the issue. Chief Justice Roberts and Justice Alito seemed the most interested in concluding that the Act is not jurisdictional and thus giving effect to the government’s waiver. Roberts described as the “biggest hurdle” to the Anti-Injunction Act argument a 1938 case in which the Court had gone ahead and decided an issue apparently barred by the Act after the government had waived its defense. When counsel responded that the case was no longer good law and pointed out that the Court had since repeatedly referred to the Act as “jurisdictional,” Alito forced him to concede that the Court had never actually held that the statute was “jurisdictional” in a case where that characterization would make a difference. Justices Ginsburg, Kagan, and Sotomayor all joined in that line of questioning, pointing to similarly worded statutes or precedents that in Justice Sotomayor’s words indicated that “Congress has accepted that in the extraordinary case we will hear the case.”
As the argument progressed, however, it appeared less likely that a majority would coalesce around this position. Justice Breyer volunteered that he was inclined to agree that the Anti-Injunction Act is jurisdictional, but that he doubted it applied to the health care legislation. Sotomayor indicated that she thought this position, which is what was being espoused by the government, was the least problematic. Justice Ginsburg suggested that she sided with the position that the Act did not apply, observing that this conclusion would make it unnecessary to resolve the thornier “jurisdictional” question.
Although it is always hazardous to predict outcomes based on questions asked at oral argument, the most likely outcome appears to be that the majority of Justices will address the merits of the Anti-Injunction Act issue, rather than relying on the government’s waiver of the defense. If so, the decision will not foreclose courts in the future from applying the Anti-Injunction Act when the government has failed to raise the defense or deliberately chosen not to raise it.
A decision is expected in the last week of June, perhaps June 28, and will surely be overshadowed by the Court’s contemporaneous decision on the constitutionality of the health care legislation.