Justia columnist and Cornell law professor Michael C. Dorf, and Justia guest columnist and Duke law and political science professor Neil S. Siegel comment on an interesting but less often discussed aspect of the controversial 2010 federal health care law. As Dorf and Siegel explain, before the Supreme Court reaches the merits of the case involving the health care law, it must first consider the federal Anti-Injunction Act, which became law in 1867. Dorf and Siegel note that the Anti-Injunction Act requires taxpayers who object to the federal government’s assessment or collection of a tax to first pay up, and only then sue for a refund. With respect to the federal health care law, Dorf and Siegel explain, that would delay even the very beginning of federal litigation until 2015. Yet both the law's fans and its detractors want a decision from the Supreme Court much earlier than that. Some would opt to simply ignore the Anti-Injunction Act, but as Judge Brett Kavanaugh of the U.S. Court of Appeals for the D.C. Circuit commented, “There is no ‘early-bird special’ exception to the Anti-Injunction Act.” Fortunately, Dorf and Siegel offer an ingenious solution to this dilemma that combines a reasonable interpretation of the Anti-Injunction Act with the passage of a new federal stature.

Justia columnist and Cornell law professor Michael C. Dorf comments on a case in which the Supreme Court heard oral argument last week. As Dorf explains, while the case may seem technical, it will have some very substantive consequences for the judicial enforcement of federal rights. The question the case directly raises is whether private parties (specifically, Medicaid patients and providers) can sue states to demand that they comply with the requirements of the federal Medicaid law. Interestingly, the Obama Administration's view is that they cannot, while the right-leaning U.S. Chamber of Commerce’s view is that they can—even though Democrats traditionally favor court access, and Republicans traditionally are more likely to oppose such access. Dorf explains why the Democrats’ decision to oppose court access here, while favoring it generally, is a high-risk strategy that might backfire, depending on the Court’s resolution of the case.

Justia columnist and Cornell law professor Michael C. Dorf comments on the potential impact of the resolution of the legal battle over the PPACA, also known by its critics as “Obamacare.” Various PPACA cases have caused a split among federal appellate courts, such that Dorf predicts that the Supreme Court will likely grant review this Term in a PPACA case. The case would raise the question of the constitutionality of the “individual mandate,” which requires individual Americans to purchase health insurance or pay a penalty for not doing so. Dorf argues that in the end, the Court’s PPACA decision—like Bush v. Gore before it—will have little effect as a legal precedent, but a very large political effect, as many Americans will likely see the Court’s decision, depending on how it comes out, as either a vindication or a repudiation of President Obama’s policy, and perhaps even the President himself.

Justia columnist and U.C. Davis law professor Vikram David Amar comments on the recent decision by a divided three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit, striking down Obamacare’s “individual mandate” provision, which requires each person to obtain health insurance coverage or pay a sum of money to the U.S. Treasury. Amar considers and responds to the most important Commerce Clause arguments that the panel majority invoked: (1) the unprecedented nature of the mandate in federal law; (2) the lack of a requirement in the mandate provision that each regulated individual be doing anything that affects the economy; (3) the related problem that if Congress could mandate purchase of healthcare, there would be no stopping point to federal power; and (4) the fact that insurance and healthcare are matters of traditional state concern.