Download this Paper Open PDF in Browser

'Early-Bird Special' Indeed!: Why the Tax Anti-Injunction Act Permits the Present Challenges to the Minimum Coverage Provision

Yale Law Journal Online, Vol. 121, 2012

Cornell Legal Studies Research Paper No. 11-39

17 Pages Posted: 8 Dec 2011  

Michael C. Dorf

Cornell Law School

Neil Siegel

Duke University School of Law

Date Written: December 7, 2011

Abstract

In view of the billions of dollars and enormous effort that might otherwise be wasted, the public interest will be best served if the Supreme Court of the United States decides the present challenges to the Patient Protection and Affordable Care Act (ACA) during its October 2011 Term. Potentially standing in the way, however, is the federal Tax Anti-Injunction Act (TAIA), which bars any “suit for the purpose of restraining the assessment or collection of any tax.” The dispute to date has turned on the fraught and complex question of whether the ACA’s exaction for being uninsured qualifies as a “tax” for purposes of the TAIA. We argue that the Supreme Court need not resolve this issue because the TAIA does not apply for a distinct reason: the present challenges to the ACA do not have “the purpose” of restraining tax assessment or collection. In order for the TAIA not to bar refund suits, the TAIA must be read to bar suits with the immediate purpose of restraining tax assessment or collection. The present challenges do not have such an immediate purpose because the very authority to assess or collect will not exist until long after the litigation is concluded. Among other virtues, this resolution of the TAIA question does not predetermine whether the tax power justifies the minimum coverage provision.

Keywords: courts, health care, Patient Protection and Affordable Care Act, Tax Anti-Injunction Act, minimum coverage provision

Suggested Citation

Dorf, Michael C. and Siegel, Neil, 'Early-Bird Special' Indeed!: Why the Tax Anti-Injunction Act Permits the Present Challenges to the Minimum Coverage Provision (December 7, 2011). Yale Law Journal Online, Vol. 121, 2012; Cornell Legal Studies Research Paper No. 11-39. Available at SSRN: https://ssrn.com/abstract=1969540

Michael C. Dorf

Cornell Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States

HOME PAGE: http://www.lawschool.cornell.edu/faculty/bio.cfm?id=333

Neil Siegel (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

Paper statistics

Downloads
154
Rank
162,198
Abstract Views
2,772