Jurisdiction and lawyering; reducing risks of paradox and impasse

Thanks for inviting me to guest-blog on the ACA Supreme Court arguments.

To my mind, the most striking aspect of today’s argument was how little support there seems to be for characterizing the Anti-Injunction Act as jurisdictional.  The question of whether to characterize the Anti-Injunction Act as jurisdictional is important precisely because if it is jurisdictional, courts have to consider the issue.  If it is jurisdictional, it doesn’t matter that the government failed to raise the issue in the court of appeals.  If it is jurisdictional, it doesn’t matter that the government affirmatively argues that the Anti-Injunction Act is not a bar to this litigation.

On the other hand, if the Anti-Injunction Act is a non-jurisdictional claims-processing rule, the government forfeited the issue by failing to raise it in the court of appeals, and lost any hope of regaining it by affirmatively arguing that the Act is not a bar to this litigation.  Either would be enough; both would be belt and suspenders holding up the pants of this case.

Scott suggests that “if the government loses, its refusal call the mandate penalty a ‘tax’ may be a historically colossal lawyering failure.”  Maybe.  But if the Anti-Injunction Act is a claims-processing rule, this is a failure that could not be remedied at oral argument, but would have had to have been preserved throughout the litigation, from district court through court of appeals to Supreme Court.  And good lawyering often involves considering the client’s broader interests, not simply winning this individual case – a point I think lawyers may overlook too easily. It seems to me that the Obama administration decided a long time ago that it was in the nation’s best interests – and perhaps Obama’s own re-election interests– to get a decision sooner rather than later. 

This point about lawyering – that it often involves considering the client’s broader interests, not simply winning this individual case – is illustrated by another aspect of the Solicitor General’s argument today.  Having decided to take the position that the Anti-Injunction Act does not bar this litigation, he could have taken the easiest route to that conclusion and argued that the Anti-Injunction Act is a non-jurisdictional, claims-processing rule.  Viewed that way, the government would have the power to waive any objection based on the Anti-Injunction Act.  Moreover, there is precedent supporting that approach: the Helvering v. Davis case that Chief Justice Roberts kept referring to in which the court reached the merits of a challenge to the Social Security Act in reliance on the government’s waiver of the Anti-Injunction Act.  301 U.S. 619 (1937).  But the Solicitor General refused to take that route, despite considerable prompting, because of his concern about how that might come back to haunt the government in other cases.

As I heard the argument today, it seemed that the Solicitor General made little headway on this point.  Only Justice Breyer indicated real support for viewing the Anti-Injunction Act as jurisdictional.  Chief Justice Roberts, as well as Justices Scalia, Alito, and Kagan seemed quite skeptical of that view, as did (to a lesser extent) Justices  Kennedy and Sotomayor.  And Justice Breyer strongly suggested that Anti-Injunction Act, despite being jurisdictional, would not bar the litigation, because Congress did not label the penalty a tax, while Justice Ginsburg likewise suggested no bar, without a need to reach the question of jurisdiction.

One of the things that I have contemplated about this case – with its welter of cross-cutting issues involving the Anti-Injunction Act, the Commerce power, the Tax power, and severability – is the possibility of a voting paradox or even a judgment impasse. 

Imagine, as to the Anti-Injunction Act, if six justices viewed the Act as jurisdictional, and five justices viewed the penalty as a tax within the meaning of the Anti-Injunction Act.  One might think that this would mean dismissal under the Anti-Injunction Act.  But not if the three who viewed the Act as non-jurisdictional were not the same people as the four who viewed the penalty as not a tax: in that case, the vote on whether to dismiss or not would be seven to two against dismissal.  This voting paradox now seems unlikely given the scant support for treating the Anti-Injunction Act as jurisdictional.

Given the apparent lack of support for dismissing on the basis of the Anti-Injunction Act, the risk of a judgment impasse also seems greatly reduced.  If dismissal on the basis of the Anti-Injunction Act had more support, that would be a bigger risk.  Imagine, for example, if two justices voted to dismiss the action on the basis of the Anti-Injunction Act, and the remaining seven split four to three regarding the constitutionality of the individual mandate.  No judgment would command a majority, and the court would face a judgment impasse.

I’m not sure we are out of the woods on these risks yet.  But one possible upside to today’s rather one-sided argument is that these risks seem reduced.

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