This is a sleeper issue that could punt any review of the individual mandate until after 2014 unless Congress acts. At issue is the Anti-Injunction Act (AIA), a federal law that bars a court challenge of a tax until it is assessed. In the case of the mandate, if the court ruled that the AIA applies, there could be no challenge until the individual mandate actually goes into effect after 2014.
One appellate court based in Richmond Virginia dismissed a challenge to the health care law under the AIA, reasoning that the penalty associated with the individual mandate functions like a tax and is subject to the AIA.
What's odd about this is that neither the government nor the challengers think the AIA should be in play. So while they have both filed briefs saying the health care challenge is not barred by the AIA, the court appointed a counsel, Robert A. Long Jr., to argue that the challenge is barred.
The government argues that while the mandate is justified under Congress' taxing power, the penalty associated with the mandate is not within the category of tax penalties that trigger the AIA.
"It suffices here to conclude that Congress does not intend every exercise of its taxing power to be deemed a 'tax' for any and all purposes under the Internal Revenue Code, including the AIA," the government says.
The states say they are beyond the reach of the AIA because they are not "persons" to whom the statute applies. And the National Federation of Business and four individuals challenging the law say their focus is on the mandate that they argue in court papers "cannot possibly be characterized as a 'tax.'"
But Long says the mandate and the penalty provision are "tightly linked." He rejects the government's argument that the penalty is not the kind of tax covered by the AIA. He says the word "tax" refers broadly to "any sum of money assessed on the person or property of a citizen by government."
Long says that Congress knows how to create exceptions to the Anti-Injunction Act and it did not do so in regard to the ACA.
"In short, if Congress decides that policy considerations justify pre-enforcement challenges to the constitutionality of the Affordable Care Act, it can enact legislation providing for immediate review," Long said. "Unless and until such legislation is enacted, pre-enforcement challenges are barred by the Anti-Injunction Act."