The Equitable Anti-Injunction Act

Abstract

The Anti-Injunction Act of 1867 has never been more important. Originally enacted to expedite the collection of revenue-raising taxes, courts and scholars have for years assumed that the statute imposes a jurisdictional bar on any preenforcement challenge to a tax. On this interpretation, taxpayers subject to an invalid tax have two choices only: comply or pay the tax and pursue a refund. Read this way, the Act is a marked departure from the general rule that preenforcement challenges are permissible so long as justiciability requirements are met. And it imposes a marked burden on aggrieved taxpayers that grows all the more significant as the federal government regulates more and more activity through the tax code.

This Article argues that the conventional wisdom is wrong. Scholars — and courts — have too readily relied on the Supreme Court’s past permissive use of the term jurisdiction. But the Supreme Court has recently backed away from this jurisprudence, and more to the point, the traditional tools of statutory interpretation indicate that the AIA is not jurisdictional after all — at least, not in the traditional way.

This Article examines the text, structure, history, and early interpretation of the AIA and comes to a novel conclusion: The Act is not jurisdictional in the usual sense, but rather governs the equity jurisdiction of the federal courts. While “equity jurisdiction” is now a term unfamiliar to us, it governed the exercise of extraordinary remedies like injunctions for over a century. And it functioned much differently than jurisdiction does today. That the AIA refers to equity jurisdiction will change the landscape of tax litigation: Contrary to the conventional wisdom, preenforcement tax challenges may go forward where the Government waives or forfeits reliance on the AIA and in certain extraordinary circumstances.

Keywords: equity, equitable, anti-injunction, injunction, tax, jurisdiction, jurisdictional, federal courts