The Affordable Care Act’s opponents want to read a whole lot into the fact that the Supreme Court will hear six hours of oral argument in next week’s health care case, but the real reason for this is that the justices are effectively hearing four completely unrelated cases. Unlike most Supreme Court hearings, which focus on a single, narrow question of law or on a few closely related questions, the four issues now facing the justices involve wholly separate doctrines, wholly unrelated precedents, and — at least in one case — a statute that few people have ever even heard off. For this reason, it makes sense that the Court agreed to give each of these four issues a lengthy hearing, rather than requiring each issue to compete against the others for a few minutes of oral argument.
The least sexy of these four issues is the Tax Anti-Injunction Act, yet it could also wind up being the most consequential. If the Court decides that this obscure law applies to the Affordable Care Act, it would mean that no one would be able to challenge the law’s most targeted provision in court until 2015 — long after the law provided tens of millions of Americans with health insurance and, in doing so, gained a constituency that would solidly entrench the law’s support.
In short, the Anti-Injunction Act does not permit anyone to bring a lawsuit trying to block the collection of a tax — taxpayers must first pay their taxes and then, if they believe that they were forced to pay too much, they are allowed to sue for a refund. This distinction matters because the most significant challenge to the Affordable Care Act targets its provision requiring most Americans to either carry health insurance or pay slightly more income taxes. Because this provision does not take effect until 2014 — and 2014 tax returns will not be filed until 2015 — the Anti-Injunction Act provides a strong argument against allowing any court to weigh in on the ACA for another two and a half years.
To date, three of the twelve court of appeals judges to consider the law have agreed that the Anti-Injunction Act applies here — including the very influential conservative Judge Brett Kavanaugh. Kavanaugh, a former law clerk to conservative Justice Anthony Kennedy who is widely viewed as a likely Supreme Court nominee in a Republican administration, appeared highly skeptical of the constitutional challenge to the ACA when he heard oral arguments in this case. Yet, by voting to dismiss the case on Tax Anti-Injunction grounds, avoided lending his significant right-wing street cred to the Obama Administration’s extremely persuasive legal arguments.
It is, of course, possible that Kavanaugh simply reached a good faith decision that the Anti-Injunction Act applies here, regardless of the political battle at state. Nonetheless, if there are conservative members of this Court who aren’t willing to embrace an attack on the ACA which, in the words of conservative Judge Laurence Silberman, has no basis “in either the text of the Constitution or Supreme Court precedent,” but at the same time would prefer not to give a political boost to the ACA, Judge Kavanaugh may have shown them the way forward.