In Monday morning’s oral argument at the Supreme Court, Solicitor General Donald Verrilli, Jr. juggled several legal balls in the air simultaneously while keeping a straight face. And he probably provided the most workable path for the Court to conclude that the Anti-Injunction Act (AIA) will not keep it from reaching a decision on the merits in the constitutional law challenges to the individual mandate under the Affordable Care Act (ACA).
Verrilli first had to insist that the 19th century AIA is a jurisdictional limit on courts, and not just a claims processing rule, regarding pre-enforcement challenges to the assessment or collection of any “tax” before it is due. As a general rule, the federal government does not want to concede its broad powers to collect revenue without facing early interference by prospective taxpayers. Nor did Verrilli want to abandon completely the Obama administration’s fading argument that the individual mandate still could be upheld as part of the constitutional powers of Congress to raise taxes and spend money to promote the general welfare (instead of as part of the power of Congress to regulate interstate commerce).