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Tax Notes

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Tax Notes



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The Supreme Court will soon consider challenges to constitutionality of the so-called individual mandate portion of the Patient Protection and Affordable Care Act of 2010 (PPACA). It is important for the nation that the Court render a decision on the merits. This could be derailed, however, were the Court to dispose of the case by holding that the Anti-Injunction Act (AIA) and the Declaratory Judgment Act (DJA) preclude pre-enforcement review. Disposition on those grounds would subject the federal government, states, businesses, and individuals to years of additional uncertainty, inconvenience, and expense.

Fortunately, that threat to resolution on the merits can be easily and expeditiously removed. This report urges Congress to amend the AIA and the DJA to provide that they do not apply to, or prevent pre-enforcement judicial review of, suits challenging the constitutionality of the individual mandate. That could be done rapidly and simply. Because both supporters and opponents of the individual mandate now favor on-the-merits Supreme Court review, there should be little or no political controversy as to enactment of the amendments. Moreover, the amendments would not require elaborate drafting – two sentences of language (one each for the AIA and the DJA) would suffice.

Parts I and II of this report provide additional background. Part I describes the individual mandate, challenges that have been made regarding the validity of the mandate, and the results of litigation to date. Part II describes the AIA and DJA and recounts arguments advanced as to their applicability or inapplicability to the individual mandate context.

Part III explains the need for amendment of the AIA and the DJA. It notes that there is a genuine possibility that the Court may hold that the acts preclude pre-enforcement review of the constitutionality of the individual mandate and that this outcome would harm the country. Disposing of the cases on AIA and DJA grounds would delay for years on-the-merits resolution of the legality of the individual mandate. That delay would protract our agony of uncertainty about what our national health policy will be, and it would create great practical difficulties for the federal government, businesses, and individuals. That is an unacceptable risk given how easily the risk could be obviated by short, simple, and uncontroversial amendments to the AIA and DJA.

Part IV addresses how to effect those statutory amendments. It considers, and rejects, possible objections to statutory amendment.


© 2011 Steve R. Johnson


First published in Tax Notes.

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