Constitutional law cases are often flanked by important disputes over procedure and process. These disputes can take the form of threshold questions, such as whether the Court has jurisdiction to decide a case, or they can appear as questions of remedy that arise at the case’s back end, such as whether the Court can simply carve out an unconstitutional provision of a complex statute.

These issues currently flank the debate over the constitutionality of the Affordable Care Act, a topic on which the Court will hear oral argument in the spring, with a decision expected to follow in early summer. Both issues highlight the fact that constitutional litigation is often much more complex than just the central issue in a case of whether a right has been violated. Establishing jurisdiction is always a critical step, and identifying the appropriate remedy for a constitutional wrong is often challenging.

Consider the appeals over the individual mandate, a centerpiece of the law passed by Congress last year, which requires that virtually all persons in the United States have health insurance by 2014 and assesses a penalty on those who do not have medical coverage. The penalty would be collected through federal income tax returns beginning in 2015.

The constitutionality of the individual mandate has been challenged by individuals, states, and organizations. They argue that Congress exceeded its power to regulate interstate commerce when it passed the health care law that requires individuals to choose between buying insurance they may not want or paying a penalty. That question about the scope of Congress’s power under the Constitution is the heart of the legal battle over the health care law. While the Sixth and D.C. Circuits have agreed with the federal government that Congress indeed has such power, the Supreme Court has agreed to hear an appeal from the Eleventh Circuit’s holding that Congress lacked the authority to compel individuals to purchase health insurance.

Before the Court can ever get to the heart of a matter, however, the Justices must always decide whether they have jurisdiction – a determination that the case is in the right court, ready for decision without any legal impediments.

In the case of the health care law, this question turns on whether a federal law called the Anti-Injunction Act applies to the health care law. The relevant portion of the Anti-Injunction Act, passed by Congress nearly 150 years ago, says that no federal court has jurisdiction to stop the collection of a federal tax before that tax goes into effect. As a practical matter, this means that the proper way to challenge the constitutionality of a federal tax is to pay the levy first and then to question the validity of the tax while suing for a refund. If the Anti-Injunction Act applies, then the Supreme Court may have to say that there is no authority for any federal court to rule on the individual mandate until the first penalties are paid in 2015.

But does the Anti-Injunction Act apply? Congress repeatedly referred to the payment by those who fail to buy health insurance as a penalty, not a tax; moreover, it used the term “tax” in other provisions of the health care law to refer to other forms of revenue collection. Yet, the collection of the penalty would be administered through the Internal Revenue Service and paid on federal income tax returns. So it may not be a tax, but if it is a penalty that operates much like a tax, should it be covered by the Anti-Injunction Act?

The Obama Administration actually changed its position on that question. When the health care law was hit with a flood of lawsuits soon after President Obama signed the legislation, the Justice Department argued in federal district courts that the lawsuits were barred by the Anti-Injunction Act. But as the cases moved into the federal courts of appeals, the Justice Department no longer pressed that argument, maintaining that the penalty in the health care law could be distinguished from the kinds of tax collections for which the Anti-Injunction Act bars jurisdiction. Of the four federal appeals courts to rule on the Affordable Care Act, only the Fourth Circuit held that the penalty was covered by the Anti-Injunction Act and that it therefore could not reach the question of Congressional power. This view was also advanced at length in the D.C. Circuit in a solo dissenting opinion by Judge Brett M. Kavanaugh.

As part of its consideration of the individual mandate, the Supreme Court has also said it will consider whether and how the Anti-Injunction Act applies to the case. Because the Justice Department no longer argues that there is a jurisdiction problem, and because the parties challenging the law believe that Congress asserted its power under the Commerce Clause rather than its taxing power, there is no one in the case to defend the position that the Anti-Injunction Act should apply. As a result, the Supreme Court had to appoint a lawyer, Robert Long of the Washington, D.C. firm of Covington and Burling, to argue that the Anti-Injunction Act applies and deprives the Court of jurisdiction to review the individual mandate until 2015.

Another critical facet of constitutional litigation is the question of the appropriate remedy. When confronting unconstitutional legislation, should the Court try to excise the invalid provisions and save the rest of the legislation? In legal jargon, this is the issue of severability – whether one invalid piece of a law can be cut out and the rest left intact.

Should the Supreme Court make it past jurisdiction and get to the constitutionality of the individual mandate, the Justices face the severability issue, if they are inclined to strike down the provision requiring everyone to have health care or pay a penalty. Since the Eleventh Circuit was the only appeals court to strike down the health insurance requirement, it was also the only appeals court to decide that the invalid part of the law could be excised and the rest left in place. The test applied by the Eleventh Circuit may be simply summarized: would Congress have passed the law anyway without the part that is unconstitutional? But summarizing the test is far easier than answering the question it poses.

There are certainly important components of the Affordable Care Act that can be supported as important reforms in their own right – for example, provisions that limit an insurer’s ability to decline coverage for pre-existing conditions and young adults to remain on their parents’ policies, if necessary, until age twenty-five. If one of the main goals of the new law was to guarantee that everyone have health insurance, however, the individual mandate is integral to achieving that purpose. Moreover, the individual mandate was necessary to add people to the insurance rolls and revenue to the insurance coffers to spread out the cost of covering additional medical care.

Would Congress have passed the Affordable Care Act without the individual mandate? The Supreme Court has said it will consider that question, as well, as it rules on the law. And again, because no one involved in the case is defending the Eleventh Circuit’s position that the provision can be severed, the Justices appointed another lawyer, H. Bartow Farr III of the Washington, D.C. firm of Farr and Taranto, to argue that severability is the correct remedy if the individual mandate is ruled unconstitutional.

Just deciding the question of whether the health care law is constitutional would be a momentous decision for the Justices, but tackling the other issues that come with the case puts the Court on a twisting path of constitutional issues surrounded by important matters of process and procedure.

Posted in Featured, SCOTUS for law students

Recommended Citation: Stephen Wermiel, SCOTUS for law students: An introduction to jurisdiction and remedies, through the lens of the health care cases, SCOTUSblog (Nov. 25, 2011, 8:23 PM), http://www.scotusblog.com/2011/11/scotus-for-law-students-an-introduction-to-jurisdiction-and-remedies-through-the-lens-of-the-health-care-cases/