Punting, passing, and kicking issues down the field is a regular occurrence here in Washington -- what with handing the ball to
states to define essential health insurance benefits, the several, almost government shutdowns, and Congress... well, enough said. But there is another under-reported, under-hyped potential play that could be called: punting the health reform ruling by the Supreme Court in 3 months.
Whoa. Game-changer. You mean there's a way to
avoid making a life or death decision for PPACA and any political ramifications for Election 2012??
It all lies in the Tax Anti-Injunction Act. Simply put, the Act (which applies to more than what we usually think of when we say "tax") requires a person to have actually paid the contentious tax/penalty (whatever it is) before challenging it in court. However, the tax/penalty provision in PPACA does not kick in until 2015ish. Therefore, no one has yet paid it. How can there be a challenge to something no one has been forced to do? Well, that is the argument -- that the claim at hand is premature and is not "properly before the court." That is... until 2015. This reflects the fundamental federal rule that an actual case or controversy must exist prior to judicial review (but in statutory form). The minute someone pays said tax/penalty, an actual case or controversy arises. Delaying Supreme Court review could favor health reform. It has been argued that greater time will yield a greater number of supporters as implementation is more wide-spread. So, the Court has a way to postpone deciding on the merits and reschedule the match-up if it so choses.
This issue has been allotted
1 full hour out of the
5.5 hours of oral argument, and is not without its
weaknesses, but it will be interesting to see how this pans out in the super bowl of health reform litigation. Do you think the Supreme Court should postpone making a decision on health reform?
Is this only applicable to individuals? Which is to say, wouldn't the States or even insurance companies have legal standing to challenge the law as a "whole" because they've already been subjected to parts of it?
ReplyDelete@ddoublep thanks for your comment and great question!
ReplyDeleteI believe that is part of the debate that the Supreme Court will have to settle. What you stated is essentially the States' argument - that the Anti-Injunction Act (AIA) doesn't apply to them and so they can bring suit when they want. But the government argues that the word "individual" is not important in regards to the AIA, because making that distinction goes against the AIA's purpose and original intent, which is to preserve the government’s ability to assess and collect taxes with minimal court interference (ie, until the tax is actually collected).* They further argue that the tax/penalty provision only applies to actual persons; so, states/entities do not have standing to challenge something not applicable to them.**
I hope that answers your question. If not, please ask me for clarification!
*See pg. 15-20: http://www.supremecourt.gov/docket/PDFs/11-438%20BIO.pdf
** See pg. 15, footnote 7: same link