FantasySCOTUS health care law predictions, part 1

November 21, 2011

SCOTUS ClipboardI recently discovered a website called FantasySCOTUS, which describes itself as “the Internet’s Premier Supreme Court Fantasy League.”

Yes, it is like a fantasy sports site, except with the Supreme Court.

Each Supreme Court term (or season, I guess you could say), one makes predictions on which Justice will rule which way for all of the cases in SCOTUS’s docket, and earns points based on the accuracy of the predictions.

Of course, there’s probably no bigger case on SCOTUS’s current docket than the health care one (Florida v. Dept. of HHS).

It’s so big, in fact, that FantasySCOTUS has broken down the case into four separate issue predictions.

The first one is interesting in that the Supreme Court independently raised the issue (i.e. the issue wasn’t raised by any of the parties’ cert petitions).

That question is whether the Anti-Injunction Act (AIA) bars challenges to the Minimum Essential Coverage (the individual mandate) before it actually takes effect.

The issue was raised in the 4th Circuit’s Liberty University v. Geithner and the D.C. Circuit’s Seven-Sky v. Holder, neither of which were granted cert.

Since the AIA prohibits legal challenges to taxes before they have taken effect, this entire issue comes down to whether the “penalty” levied against individuals is a tax penalty or a civil penalty.

As entertaining as it would be to have the Supreme Court punt the issue until 2014 (when the mandate takes effect), this is unlikely to happen.

However, the reasons for this aren’t as simple as expediency (i.e. just get the issue decided and over with now), nor would any of us expect the Justices to insult our intelligence by openly employing that rationale.

If SCOTUS were to rule the provision a tax now, they would be guaranteeing the law’s constitutionality three to five years later when the challenges found their way back.

This is because Congress’s power under the Taxing and Spending Clause is significantly broader than its power under the Commerce Clause.

So much so, in fact, that I cannot fathom a viable legal argument as to why Congress doesn’t have the authority to impose such a tax.

It is for this reason that the Justices will likely decide unanimously that the suit is not barred by the AIA.

Probably the only two Justices that should come as no surprise here are Thomas and Scalia (which I’ll get into more detail on in a later post).

Though many others may see the remaining conservatives – Kennedy, Roberts, and Alito – as an easy decision here as well, that isn’t necessarily the case.

These Justices tend to be swayed by existing conservative legal opinions more than Thomas and Scalia.

One such opinion, Judge Brett Kavanaugh’s dissent in Seven-Sky, held that legal challenges are barred by the AIA (but also gave an easy out to the tax question by saying that the AIA also prohibits pre-enforcement challenges to civil penalties the IRS is charged with collecting).

The conservative legal voices haven’t been particularly vocal on the issue, though (at least compared to the other issues of the case, which I’ll get to in later posts).

Thus, these three will probably go the pragmatic route of settling the mandate’s constitutionality once and for all.

Conversely, many may be perplexed as to why the four remaining Justices, the Court’s liberal bloc consisting of Breyer, Ginsburg, Sotomayor, and Kagan, would vote in such a manner.

The rationale, again, comes down to pragmatism.

If the four liberals decide that the AIA bars the suit before it, they are ruling the challengers lack standing, and therefore they should not consider the merits of the case.

This could effectively pave the way for a defeat of the health care bill, since it would force Kennedy, Roberts, and Alito to join with Thomas and Scalia in an effort to avoid a plurality ruling by the liberals dismissing the suit for lack of standing.

Accordingly, despite the persuasive legal arguments otherwise, SCOTUS will unanimously rule that the AIA does not bar challenges to the individual mandate.

Dept. of HHS v. Florida (Is suit barred by Anti-Injunction Act?)

Question Presented

Whether the suit brought by respondents to challenge the minimum coverage provision of the Patient Protection and Affordable Care Act is barred by the Anti-Injunction Act, 26 U.S.C. §7421(a).

Lower Court’s Decision

The Court of Appeals of the 11th Circuit held that the suit was not barred by the Anti-Injunction Act.

My Prediction

Unanimously affirm.

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