The Jurisdictional Question in Hobby Lobby

12 Pages Posted: 29 Jul 2014 Last revised: 22 Aug 2014

See all articles by Erin Morrow Hawley

Erin Morrow Hawley

University of Missouri School of Law

Date Written: July 29, 2014


Burwell v. Hobby Lobby Stores may well be the biggest case of the term. And by its own rules, the Supreme Court lacked jurisdiction. An obscure statute, the Anti-Injunction Act of 1867 (“the AIA”), imposes a pay-first requirement for federal tax challenges. The deeply held conventional wisdom is that the AIA is a jurisdictional statute, and there is a good argument that the AIA applies to the contraception mandate. As we learned from National Federation of Independent Business v. Sebelius, 132 S.Ct. 2566 (2012), the best evidence of whether Congress intended the AIA to apply is the text. The mandate at issue in Hobby Lobby, 26 U.S.C. § 4980D, expressly refers to the employer assessment as a tax — 24 times. In light of NFIB, the Supreme Court’s failure to address the AIA was a serious mistake.

Keywords: Hobby Lobby, aia, anti-injunction, tax, contraception, mandate, National Federation, Sebelius, NFIB

Suggested Citation

Hawley, Erin Morrow, The Jurisdictional Question in Hobby Lobby (July 29, 2014). Yale Law Journal Forum (Fall 2014), University of Missouri School of Law Legal Studies Research Paper No. 2014-21, Available at SSRN:

Erin Morrow Hawley (Contact Author)

University of Missouri School of Law ( email )

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Columbia, MO MO 65211
United States

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