Supreme Court May NOT Decide Constitutionality of Obamacare, Says Public Law Prof

Nov. 14, 2011 - PRLog -- Although the U.S. Supreme Court this morning agreed to review the Patient Protection and Affordable Care Act, it is quite possible that it will not rule upon the law's constitutionality -- and especially upon the constitutionality of mandating the purchase of health insurance -- during its current term and before the 2012 elections, suggests public interest law professor John Banzhaf.

Rather, by setting aside a full hour for oral argument related solely to whether the Anti-Injunction Act bars some or all of the challenges to the insurance mandate, the justices are suggesting that they are giving serious consideration to a legal argument which would prevent them from deciding the constitutionality of that provision prior to the time it is actually applied.

Judge Brett Kavanaugh, a George W. Bush appointee, dissented from the ruling of the U.S. Court of Appeals for the District of Columbia on Nov. 8th which upheld the constitutionality of the statute.  Although he called the mandatory insurance provision “unprecedented on the federal level in American history,” and suggested that it could lead to requirements that citizens have savings accounts and other forms of insurance, he did not rule on its constitutionality.

Instead, Judge Kavanaugh argued that since the penalty is a type of tax, the constitutionality of the statute, under the Anti-Injunction Act, cannot be decided until some individual is in fact penalized.  Similar arguments were made in the decision by the U.S. Court of Appeals for the 4th Circuit.

The Anti-Injunction Act, a part of the Internal Revenue Code, denies courts jurisdiction over pre-enforcement suits that would restrain "the assessment or collection of any tax."  Although the majority of the D.C. court decided that the penalty in the act was not in effect a "tax," Judge Kavanaugh argued that it was a "tax," and so the courts cannot decide the constitutionality of the statute at this time.

Although Judge Kavanaugh was in the minority when the D.C. Circuit addressed the issue, a majority of the 4th Circuit held that, because this suit constituted a pre-enforcement action seeking to restrain the assessment of a tax, the Anti-Injunction Act stripped courts of jurisdiction.

Depending on how the remainder of the justices split on the issue of the constitutionality of the mandatory insurance provision, the vote of a single justice (e.g., Anthony Kennedy) could postpone deciding whether or not to uphold the overall statute.  One advantage might be that this delay could provide time for Congress -- if it wished -- to address and probably correct the problem by making the penalty more clearly a tax.  This, many believe, would clearly make it constitutional.

"While it's always difficult to read the tea leaves in trying to predict what the Supreme Court will do, it's vitally important to look at all the tea leaves.  Since several appellate judges were convinced by the tax argument, and the High Court allocated an hour for oral argument on it, it's at least possible that no final decision on the constitutionality of 'Obamacare' is imminent," says Prof. Banzhaf.

JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW, Suite S402
Washington, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/

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John F. Banzhaf III is a Professor of Public Interest Law at George Washington University Law School [http://banzhaf.net/] where he is best known for his work regarding smoking, obesity, discrimination, food and auto safety, political corruption, etc.