Today’s Threshold Issue

If you’ve read any of the better previews of the Supreme Court’s oral arguments on ObamaCare this week, you may already understand that today’s arguments don’t even touch on the individual mandate issue that has dominated lower-court decisions and just about all of the media coverage. But SCOTUSBlog’s Lyle Denniston has a nice summary:

[T]he Court just might not rule at all on the individual mandate if it were to decide that no challenger had a right to go to court to contest the mandate’s constitutionality. That is Monday’s issue, and the first lawyer to step up to the Court’s lectern this week will be urging the Justices to do just that — to take a pass. Although neither the challengers nor the federal government currently believes that the federal Anti-Injunction Act was a bar to the lawsuits, the lower courts took differing positions on that, and the Justices have agreed to sort it out, naming a Washington lawyer with no other part in the case to make the point.

The Court itself had taken differing positions on that, in rulings decades ago, but then switched and steadily reinforced the Act’s ban on lawsuits that threatened to stop the U.S. Treasury from collecting tax revenues. If it should turn out that the Justices do apply the Act to the lawsuits against the mandate, the mandate would survive this test, and maybe $4 billion of tax revenue would still come in over coming years.

That would take away from this case much of its historic potential, because the constitutional issues surrounding the mandate are so momentous and yet would remain unsettled for now. But such a ruling would be one of the most significant gestures the Court has made to protect the national Treasury in 50 years — an action that could rank constitutionally with the ratification of the Sixteenth Amendment in 1913. It would be a strong message to lower courts to keep the courthouse doors closed to attempts to block federal legislation that is designed, at least in part, to produce revenue for the government’s coffers. But the practical effect, for the mandate, would be that it could not be challenged until after it had actually gone into effect — in 2014 — and was then enforced by the government.

I’d be willing to bet that a lot of media reports ignore today’s issue and instead just focus on whatever indirect signals the Justices send about the mandate in the wording of their questions or even their body-language. But the Supremes really could wind up using the Anti-Injunction Act to kick the can further down the road, not an unusual tactic for a divided Court.

Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.