The "Early-Bird Special" Exception to the Tax Anti-Injunction Act

Neil Siegel

Mike Dorf and I have posted a new paper on SSRN that is forthcoming in The Yale Law Journal Online. We recently previewed the paper in a Verdict column. We argue that, in view of the billions of dollars and enormous effort that might otherwise be wasted, the public interest will be best served if the U.S. Supreme Court decides the merits of the present constitutional challenges to the Patient Protection and Affordable Care Act (ACA) during its October 2011 Term. (In a recent blog post, Mike further discusses why prompt adjudication is the best course.)

Potentially standing in the way, however, is the federal Tax Anti-Injunction Act (TAIA), 26 U.S.C. § 7421(a). This statute bars any “suit for the purpose of restraining the assessment or collection of any tax.”

The dispute to date has turned on the fraught and complex question of whether the ACA’s exaction for being uninsured qualifies as a “tax” for purposes of the TAIA. We argue that the Court need not untangle this knot because the TAIA does not apply for a distinct reason: the present challenges to the ACA’s minimum coverage provision do not have “the purpose” of restraining tax assessment or collection. We so argue because, in order for the TAIA not to bar tax refund suits, the TAIA must be read to bar only suits with the immediate purpose of restraining tax assessment or collection. The present challenges do not have such an immediate purpose because the very authority to assess or collect will not exist until long after the litigation is concluded.

Among other virtues that we discuss in the paper, our proposed resolution of the TAIA question does not predetermine whether the tax power justifies the minimum coverage provision.

In a counsel of caution, we also call on Congress to pass a special-purpose statute stating that the TAIA does not bar pre-enforcement challenges to the minimum coverage provision until the provision goes into effect. There is no dispute about the authority of Congress to pass such a law. Moreover, if the political branches were to turn their attention to the matter, there would be good reason to expect that the bill would pass both chambers and be signed into law by the President.
Posted 3:16 PM by Neil Siegel [link]

The Conservative Movement’s “Goldilocks” Originalism

Ken Kersch

Most of the discussion of originalism as an interpretive method is part of a professionalized debate amongst law-school-based normative constitutional theorists. But, of course, originalism is also enormously important as a strain of the constitutional politics of the conservative movement, where it is used to help forge movement identities and motivate political participation. As it lives in movement politics, there are important strains of originalism that operate on a different axis entirely from that orientating (most) legal academics.

One of the most influential of these is what I will call “Goldilocks Originalism.” Conservative “Goldilocks” originalists do not orient themselves (in the first instance) in opposition to “living constitutionalists,” but rather in opposition to secularist, positivist, relativist, liberals and progressives. To these movement originalists, the fatal flaw of their antagonists is not that their constitutional theory leaves judges, in ruling in cases, unrestrained in imposing their politics rather than following the law (though Goldilocks originalists certainly believe that to be the case, and often say so), but rather that that the constitutional theory of their opponents severs the tie between our perpetually besieged nation and the only anchor that will truly hold -- the belief in (a Christian, or Judeo-Christian) God. In this, as they see it, the Founders, and the Founders’ Constitution, are squarely on their side.
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Posted 10:30 PM by Ken Kersch [link]

The Indebted Lawyer

Brian Tamanaha

Bruce Ackerman bemoans that "even in elite schools, it is astonishingly easy for law students to lose themselves in clinical work and avoid the sustained, and multi-disciplinary, course-work that should be required for the leaders of the next generation." He suggests that those who advocate basic lawyer training are succumbing to the anti-intellectual tenor of the age.

As an outspoken critic of contemporary legal academia, I feel compelled to explain that my position is not anti-intellectual. What I am arguing for is greater differentiation in legal education.

Not all law students are "leaders of the next generation." The vast majority of lawyers do basic yet essential work that helps people and businesses carry on with the tasks of life. And while it is true that the lawyer-statesman ideal has taken a hit, as Kronman argued in The Lost Lawyer, it was always an ideal drawn by the elite of the bar, not a description of most lawyers.
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Posted 11:17 AM by Brian Tamanaha [link] (15) comments

The Lost Lawyer

Guest Blogger

Bruce Ackerman

Balkinization has been the site of three responses to the New York Times’ harsh critique of modern legal education – all largely apologetic. Come to the modern law school, David Levi and Jason Mazzone tell us, and you will see that the Times’ critique is out-of-date -- proliferating clinics and internships provide precisely the sophisticated practitioner-training that the newspaper is calling for. We live in (almost) the best of all possible worlds.

Sandy Levinson adds a characteristically iconoclastic note by putting Milton Friedman onto his list of intellectual heroes. He suggests that law schools be stripped of their monopoly on bar admission: it should not be necessary “to invest in three years of legal education” before a professional should be licensed to engage in “basic areas” like “uncontested divorces, simple wills, basic landlord-tenant,” among (how many?) others, which don’t require a three year “investment.”

This collective apologia represents a striking confirmation of Tony Kronman’s brilliant Lost Lawyer, and its diagnosis of the decline and fall of the lawyer-statesman ideal in America. My Kronmanian dissent, published as a letter in today’s Times, serves as a counterpoint. The truth is that, even in elite schools, it is astonishingly easy for law students to lose themselves in clinical work and avoid the sustained, and multi-disciplinary, course-work that should be required for the leaders of the next generation. We are adapting all-too-well to the temper of the Times – generating increasing numbers of anti-intellectual lawyers to express the growing anti-intellectualism of American politics.
Posted 8:05 AM by Guest Blogger [link]

The Twilight of the Last Banana Republic?

Guest Blogger

Miguel Schor

The failure of the so-called Congressional super committee to reach a compromise on a plan to deal with the budget deficit calls into question our system of separation of powers. The question is whether gridlock is a constitutional flaw or a virtue. Justice Scalia, in recent testimony before the Senate, was unapologetic in his defense of separation of powers. What sets the United States apart from other countries, he stated, was not the Bill of Rights, which “every banana republic” has, but separation of powers. Americans, he concluded, “should learn to love the gridlock.”

Americans are not learning to love gridlock. Congressional approval ratings are at record lows. The government is paralyzed at a time when action is badly needed to deal with a severe economic downturn. American citizens, unlike Justice Scalia, understand what is the source of the problem. The first job of government is to govern. The framers, after all, proclaimed in the Preamble to the Constitution that the job of our government is “to promote the general Welfare.”

The question is what constitutional roadblocks to governance exist in the other republics of the world? The considered judgment of the world’s developed democracies, the majority of which are parliamentary governments, is that gridlock is a constitutional bug, not a virtue. Written constitutions have a tough job to do: they empower government to solve national problems and seek to limit the exercise of that power. There is a crucial difference, however, between constitutional systems that favor affording government the power to put in place policies for which it will be held accountable and those that disfavor affording government that power. Historically, presidentialism emphasized the importance of limits whereas parliamentary government emphasized the importance of power. The point is that virtually no other developed democracy seeks to constitutionally cripple the ability of the government to promote the general welfare. Parliamentary governments can and do suffer from a variety of democratic pathologies but they do not superimpose constitutional roadblocks on top of any political roadblocks that may exist.
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Posted 12:18 AM by Guest Blogger [link]

Another definition of originalism

Andrew Koppelman

The recent exchange over originalism between Gerard Magliocca and Jack Balkin made me think again about what is distinctive about originalism. I’d like to suggest that originalism is a distinctive rhetorical strategy, one that somehow connects the proposed course of action, judicial or otherwise, with the revered framers of the Constitution. This is not just generic constitutional argument. It is a distinctive modality of constitutional interpretation. Its function is to connect our present course of action with the project of the framers. Originalist argument is any argument that aims to persuade you that this kind of continuity is possible.

Let me elaborate.
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Posted 6:19 PM by Andrew Koppelman [link]

Anchor Originalism vs. Sail Originalism: An APD Take

Ken Kersch

What I do these days leads me to approach the originalism question from what, to many readers of Balkinization, will be an oblique angle.

The quest/competition for an airtight academic theory about the best (most legitimate, only legitimate…) way for judges to interpret the Constitution is a pretty recent phenomenon – mostly, Reagan administration forward. It has been interesting to see the movement amongst many on the liberal-left from an audacious non-interpretivism and even deconstructionism towards (forms of) originalism – indeed, as someone who was introduced to constitutional theory in law school by Michael Perry, I saw this first-hand early on. The wonder, it seems to me, is that the non-interpretivists (and deconstructionists) ever imagined that their views could be openly adopted without an intense -- and likely successful -- political backlash from their conservative opponents. Another of the wonders (weeeeee!), I guess, of the post-1960s hangover known as the 1970s.

As for what is happening now, Gerard Magliocca, in a recent post here, throws up his hands, and argues that, with the arrival of Jack Balkin’s important new book – which joins the issue as squarely as has been done to date -- really, all we’ve done is arrive at a new axis for debate between “weak originalism” and “strong originalism” (or, put otherwise, between “living originalism” and “expected application originalism,” respectively). If we -- liberals and conservatives alike -- are all originalists now, then who cares about originalism?

My inclination is to look at the matter less normatively, and more empirically. I believe in constitutional development. I believe that, as a matter of empirical fact, the meanings attributed to the Constitution change (informally) over time. Changes are initiated, tolerated, and welcomed by liberals and conservatives alike, albeit in different areas, and at different times. This is inevitable, as matter of how history works, and how human beings apprehend and make meaning.

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Posted 12:46 PM by Ken Kersch [link]

Why can't Ed Whelan take "yes" for an answer?

Doug Kendall

For decades, conservatives like Ed Whelan, the President of the Ethics and Public Policy Center and a prolific blogger at National Review’s Bench Memos, have criticized progressive judicial nominees for not endorsing originalism or for espousing a “living Constitution.” So you would think that Whelan would be overjoyed that many of President Obama’s nominees, including D.C. Circuit nominee Caitlin Halligan – scheduled for a cloture vote next Tuesday -- have emphasized the priority they put on the Constitution’s text and history. Halligan, in particular, has asserted that “the best way in which we can interpret [the Constitution] is to look to the text and the original intent of the Framers.” But instead of embracing Halligan, Whelan argues that Halligan’s acceptance of core originalist principles is – wait for it – a reason for opposing her nomination!

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Posted 2:08 PM by Doug Kendall [link]

Living Originalism

JB

Harvard University Press has published my new book, Living Originalism, this month. Here is a description of the book from Harvard University Press:

Originalism and living constitutionalism, so often understood to be diametrically opposing views of our nation’s founding document, are not in conflict—they are compatible. So argues Jack Balkin, one of the leading constitutional scholars of our time, in this long-awaited book. Step by step, Balkin gracefully outlines a constitutional theory that demonstrates why modern conceptions of civil rights and civil liberties, and the modern state’s protection of national security, health, safety, and the environment, are fully consistent with the Constitution’s original meaning. And he shows how both liberals and conservatives, working through political parties and social movements, play important roles in the ongoing project of constitutional construction.

By making firm rules but also deliberately incorporating flexible standards and abstract principles, the Constitution’s authors constructed a framework for politics on which later generations could build. Americans have taken up this task, producing institutions and doctrines that flesh out the Constitution’s text and principles. Balkin’s analysis offers a way past the angry polemics of our era, a deepened understanding of the Constitution that is at once originalist and living constitutionalist, and a vision that allows all Americans to reclaim the Constitution as their own.

Posted 6:55 AM by JB [link]

Do more educated people see more risk -- or less -- in climate change?

Dan Kahan

The answer is neither. In a survey of a nationally representative sample of 1,500 U.S. adults, education level had a correlation pretty close to zero (r = -0.02, p = 0.11) with climate change risk perceptions.

These data were collected by the Cultural Cognition Project as part of an ongoing study of science literacy, numeracy, & risk perception. In results that we describe in a working paper, science literacy and numeracy also have very minimal impact on perceptions of climate change --assessed independently of cultural worldviews. Once cultural worldviews are taken into account, the impact of science literacy & numeracy on climate change risk perceptions depends on peoples' cultural orientations: as they get more science literate & numerate, egalitarian communitarians see more risk, but hierarchical individualists see even less.

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Posted 5:09 AM by Dan Kahan [link]