When Is a Tax Not a Tax?

Well, when a politically ambitious appellate judge wants to avoid getting himself in trouble.

As Ed Kilgore pointed out, SCOTUSBlog makes it clear that the Supremes might not even consider the so-called merits of the so-called constitutional questions regarding the Affordable Care Act. That’s because of an old (but still important) federal law called the Anti-Injunction Act, which says that you can’t challenge a federal tax law’s constitutionality unless you pay the tax first. The idea behind the act is that if you could do so, the federal government would soon be so short of revenue that it would shut down (insert joke here, but you get the idea).

Where in the world did this idea come from? From Circuit Judge Brett Kavanaugh, a George W. Bush appointee who was associate counsel during the administration and who wrote the Starr Report. Kavanaugh is a clear political player: he will be the next Republican President’s first Supreme Court nominee. And so when he found that he was on the panel to consider the ACA, that gave him a real problem. Uphold the Act, and you become anathema to conservatives. Strike down the Act, and you become anathema to Democrats.

So what Kavanaugh did was concoct an argument that the Anti-Injunction Act prevents courts from hearing the suit until taxpayers pay the penalty, which because the Act rolls out so painfully slowly (thank you Steaming Pile of Senator Kent Conrad), won’t be until 2015. Great! Avoid the political problem.

But that creates a huge legal problem. Notice what it is?

If the Anti-Injunction Act applies to penalties under the ACA, then why in the world aren’t they simply taxes, and thus easily constitutional under the Taxing Clause? The entire argument of the plaintiffs in the ACA cases is that the federal government doesn’t have the authority to enact these penalties because of the Commerce Clause. But if these are just taxes, there isn’t a problem.

Kavanaugh’s way out of this problem is almost laughably weak. He insists (at footnote 36, for those of you keeping score at home) that simply because something is a tax for the purposes of the Anti-Injunction Act, that doesn’t make it a tax for the purposes of the Taxing Clause — and cites two opinions from 1922 as his justification. One of those cases, Bailey v. Drexel Furniture, held that a tax on child labor was a “penalty” because it sought to penalize the use of child labor — which that Court had previously and infamously held, in Hamner v. Dagenhart, was unconstitutional. Bailey has since been overruled, (as has Hamner) an outdated example of the Lochner era. But it’s still good law according to Judge Kavanaugh.

Kavanaugh’s opinion — the focus of today’s proceedings — is an incoherent mish-mash of right-wing politics. Later on, he insists that it is best to wait on ruling on the issue because a subsequent (sub silentio Republican) President might simply “decline to enforce” it because he sees the mandate as unconstitutional – a recollection of George Bush’s infamous “signing statement” regime.

So what we see is:

1) We can’t consider this now because the anti-tax injunction act forbids ruling on taxes before enforcement; but

2) That doesn’t make it a tax. Not at all. Because jurisprudence from the 1920′s that has been overruled says that it might not be; and

3) A Republican president might just decided all by himself that it’s unconstitutional even if the courts say it’s fine because he’s the King President and he can do whatever he wants as long as he’s a Republican.

That, ladies and gentleman is your restrained, deferential non-activist conservative jurisprudence. And it’s coming if Mitt Romney wins in November.

[Cross-posted at The Reality-Based Community]

Jonathan Zasloff

Jonathan Zasloff is a professor of law at the University of California, Los Angeles.