With the legal challenge to the Obama health law now officially before the Supreme Court, we probably need to review the one way that the justices could avoid declaring the law constitutional or unconstitutional.
In other words, the Court could just punt.
This revolves around the law known as the Tax Anti-Injunction Act, which was passed in 1867.
That act says something very simple - before someone can challenge a tax in court, you have to pay the tax.
Take that one step further - if that the tax hasn't gone into effect yet, then no one is paying it.
Applying that to the individual mandate, since that tax penalty for not having a minimum level of health insurance can't be paid until early 2015, those facts would seem to mean the tax can't be challenged in court right now.
That is what a three judge appeals panel on the Fourth Circuit ruled earlier this year - so it's not out of the realm of possibility that the Supreme Court could also take that route.
"Because this suit constitutes a pre-enforcement action seeking to restrain the assessment of a tax, the Anti-Injunction Act strips us of jurisdiction,” wrote the majority in a case dealing with a challenge by Liberty University, which was not taken up directly by the Supreme Court.
That case was never ruled on because the Fourth Circuit determined that there was no standing to sue – since the tax hadn’t been paid yet.
The Supreme Court scheduled one hour of argument on this point, part of the 5 ½ hours of arguments on this matter – for those who don’t know – that is a huge amount of time to spend on one subject for the justices.
Still to be determined is when the arguments will be scheduled; March seems to be the best bet at this point.
The Anti-Injunction Act of 1867 – could that give the Supreme Court a viable way “not” to rule on the Obama health law?