Do we really need to worry, as Jack Balkin does, that the states will bring too many lawsuits challenging federal tax laws?

Lawprof Jack Balkin doesn't like the way Judge Hudson dealt with the Anti-Injunction Act in the opinion that allowed Virginia to go forward in its attack on the Obamacare individual mandate:

In essence, Judge Hudson argues that by passing [the Virginia Health Care Freedom Act] that says that Virginia will interpose itself to protect its citizens from the individual mandate, Virginia has succeeded ... in getting around the federal tax-anti-injunction act. 

... The fact that Virginia can get around the tax anti-injunction act simply by passing a statute saying that it thinks the federal law is unconstitutional means that every state in the Union can do so as well. This undermines the purposes of the tax anti-injunction act, which was to keep tax protesters from littering the federal courts with protest litigation; the act requires that challenges to tax laws proceed in an orderly fashion through requesting refunds.

Tax protesters? You see the states, acting through their legislatures, as presenting the same problem of frivolous, wasteful litigation posed by private litigants?

There is a built-in check here that is not present for those private litigants, which is that elected representatives of the people of a state have gone through a deliberative process in making that statute, and, in addition, the state executive branch has made the decision to bring the lawsuit. These tiers of public accountability make a difference with respect to the necessity of the Anti-Injunction Act.

That act, as Judge Hudson noted, does not refer to a state as being barred from bringing suits for injunctions, only a "person." There's a question of interpretation about whether a state should be included in the word "person," and there's good reason to think it should  not. For one thing, the general rule of statutory interpretation is that "person" does not mean state. And, even more important, as I've just explained, structural checks mean that the state as a litigant doesn't present the same problems posed by an individual litigant.

Indeed, the logic of the opinion seems to suggest that if Virginia had objections to any other part of the federal tax laws, it could pass a Virgina Tax Freedom Act related to that provision, claiming that the tax provision was beyond the reserved powers of the states under the Tenth Amendment. 

How big of a threat is that? The federal tax power is extremely broad, so that virtually any lawsuit like this would be easily dismissed on the merits. You don't need a broad interpretation of the Anti-Injunction Act to solve this problem. Nearly all of the cases you ask us to fret about would either never be brought or be dismissed quickly for failure to state a claim. In the Virginia case, by contrast, the question on the merits is very difficult, and the judge held back from resolving it. How often could that happen? And when it does happen, should there be a way to challenge it in court?

(Also, Balkin can't mean the state would be "claiming that the tax provision was beyond the reserved powers of the states under the Tenth Amendment." He must have meant to write that the claim would be "the tax provision was beyond the enumerated powers of Congress and thus reserved to the states the states under the Tenth Amendment.")

Jack Balkin warns liberals not to cheer the new DOMA cases.

He supports same-sex marriage (and other liberal causes) but he's got a big problem with using the Tenth Amendment:

Judge Tauro ... wants to say that marriage is a distinctly state law function with which the federal government may not interfere. But the federal government has been involved in the regulation of family life and family formation since at least Reconstruction, and especially so since the New Deal. Much of the modern welfare state and tax code defines families, regulates family formation and gives incentives (some good and some bad) with respect to marriages and families....

In both opinions, Judge Tauro takes us through a list of federal programs for which same sex couples are denied benefits. But he does not see that even as he does so, he is also reciting the history of federal involvement in family formation and family structure. His Tenth Amendment argument therefore collapses of its own weight. If the federal government cannot interfere with state prerogatives in these areas, why was it able to pass all of these statutes, which clearly affect how state family law operates in practice and clearly give incentives that could further, undermine, or even in some cases preempt state policies?...

The modern state depends heavily on the federal government's taxing and spending powers for many of the benefits that citizens hold dear, including Medicare, Medicaid, Social Security, and the newly passed provisions of the Affordable Care Act. These programs have regulatory effects on state family policies just as much as DOMA does. If DOMA's direct interference with state prerogatives is beyond federal power, then perhaps any or all of these programs are vulnerable-- and unconstitutional-- to the extent they interfere with state policies regarding family formation as well. Put differently, Judge Tauro has offered a road map to attack a wide range of federal welfare programs, including health care reform. No matter how much they might like the result in this particular case, this is not a road that liberals want to travel.

Does this mean conservatives should cheer?

Lawprof Jack Balkin says the individual mandate is constitutional because it's a tax.

Interesting argument:

The individual mandate, which amends the Internal Revenue Code, is not actually a mandate at all. It is a tax. It gives people a choice: they can buy health insurance or they can pay a tax roughly equal to the cost of health insurance, which is used to subsidize the government’s health care program and families who wish to purchase health insurance....

The Constitution gives Congress the power to tax and spend money for the general welfare. This tax promotes the general welfare because it makes health care more widely available and affordable. Under existing law, therefore, the tax is clearly constitutional.

The mandate is also not a “direct” tax which must be apportioned among the states by population. Direct taxes are taxes on land or “head” taxes on the general population. The individual mandate does not tax land. It is not assessed on the population generally but only on people who don’t buy insurance and aren’t otherwise exempt. It is a tax on behavior....

But will the Obama administration want to defend the mandate this way? Millions of Americans are getting a big new tax hit? It's not just a question of whether this argument will work in court. It's a question of whether Obama wants to shout out loud that the supposedly beneficent new law is a huge new tax on the very people he assured — over and over — that he would not raise taxes on.



"I can make a firm pledge under my plan, no family making less than $250,000 a year will see any form of tax increase. Not your income tax, not your payroll tax, not your capital gains taxes, not any of your taxes."

ANY FORM.

Michael McConnell states the constitutional problem with the "deem and pass" more clearly and concisely than anyone can explain what the "deem and pass" is.

Is that a clue that something really devious is going on?

Article I, Section 7 clearly states that bills cannot be presented to the president for signature unless they have been approved by both houses of Congress in the same form. If the House approves the Senate bill in the same legislation by which it approves changes to the Senate bill, it will fail that requirement.

The actual constitutional text is: "Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States."

No one doubts that the House can consolidate two bills in a single measure; the question is whether, having done so, it may then hive the resulting bill into two parts, treating one part as an enrolled bill ready for presidential signature and the other part as a House bill ready for senatorial consideration. That seems inconsistent with the principle that the president may sign only bills in the exact form that they have passed both houses. A combination of two bills is not in "the same form" as either bill separately.

McConnell is fending off the argument that the House, under Article I, §5 ("Each House may determine the Rules of its Proceedings"), has the authority to bundle 2 bills together and vote on them at the same time. He also must contend with the argument — which has some case law in support — that the House makes the final call on the meaning of the Constitution in this area.

Read lawprof Jack Balkin's response to McConnell:

As I understand the rule in question, it does not actually "consolidate two bills into a single measure." Rather, it says that once the House votes on the reconciliation measure, it also votes on the Senate Bill....

McConnell's objection is formalist: He concedes that the House could have separate votes on both bills, and send one to the President and the other to the Senate. His sole objection is that the House leadership has decided to vote on them together using a single procedural rule.

But if he wants to make that kind of formalist argument, the House has an equally formalist rejoinder: The use of this particular procedural rule does not consolidate the two measures into a single measure. It just consolidates a vote on the two measures. In fact, the language of the rule actually preserves their separate character; it refers to the language of the reconciliation measure and the Senate bill separately.

What the leaders of the House would say is that McConnell has made a basic mistake: He has confused a bill with an internal rule for voting on a bill....

... The Constitution leaves to Congress to decide how to authenticate bills, and the Court won't second-guess the evidence....

What I've observed is that the Supreme Court employs formalistic-sounding arguments as a convention of opinion-writing when it is confronting Congress over matters like this and finding something unconstitutional. But, I think, a judicial intuition that something is amiss precedes the opinion-writing, and that intuition has to do with much more than a parsing of the text. As Balkin shows, you can go either way with the text if you want. The deeper question is whether the procedure deprives us — the people — of a structural safeguard that would protect us from the abuse of power. Is this something that matters, something we should care about, something that operates to preserve the accountability of our representatives?  And the answer to that question must be disaggregated from the question whether we like the substance of the bill/bills. If you go with Balkin because you want the health care reform, or with McConnell because you don't, then you are not talking about the Constitution.

McConnell's main aim is to create doubt about the "deem and pass" and thereby affect the vote in the House. He ends his op-ed:

Will wavering House members want to use this procedure when there is a nontrivial probability that the courts will render their political sacrifice wasted effort? To hazard that risk, the House leadership must have a powerful motive to avoid a straightforward vote.

Whether you want to think about the Constitution or not, you may ask: If this reform really is desirable, why are they doing it in such a bizarre way? The constitutional questions add heft to that question. If McConnell's interpretation is good, the procedure is all the more bizarre, and the doubts that arise are aggravated. If Balkin's right, then everything's fine, calm down, let it go. They are talking about law, but they are talking to Congress, trying to affect the vote. Predictions about what courts will and will not do play into the present debate.

What seems most important to me, both politically and in answering the constitutional question (if it, ultimately, becomes necessary), is whether the members of the House of Representatives understand and make it absolutely transparent that what they are doing is voting on 2 bills and that the Senate bill, if approved, will go independently and directly to the President for signature, and that, upon the President's signature, that bill will become law on its own, without any regard to whether that other bill ever makes it through the Senate and into law later on.

If the members of the House of Representatives are going to deny that they voted for the Senate bill that became law (on its own) or if they will say that they were somehow caught unaware or betrayed by the Senate or tricked, then I think the rule is unconstitutional. But if they cannot use the rule that way — as political cover — why use it at all?

Glenn Greenwald flails absurdly in a lame effort to take down Justice Alito.

Really, it drives me crazy to try to plow through the unedited dreck that Greenwald writes, but I feel compelled to defend Justice Samuel Alito who, when affronted by President Obama's accusation that the Supreme Court violated judicial norms, simply shook his head and mouthed (apparently) "not true."

Greenwald accuses Alito of "a serious and substantive breach of protocol that reflects very poorly on Alito and only further undermines the credibility of the Court." Further! Presumably, you're already against the Supreme Court, and Greenwald isn't using this post to bring you up to speed.

It has nothing to do with etiquette and everything to do with the Court's ability to adhere to its intended function.

There's a reason that Supreme Court Justices -- along with the Joint Chiefs of Staff -- never applaud or otherwise express any reaction at a State of the Union address. It's vital -- both as a matter of perception and reality -- that those institutions remain apolitical, separate and detached from partisan wars. 

Uh, yeah, which is why Obama's words were such an affront. Obama called the Citizens United case a "wrong," that is, a legal outrage of some sort, but, obviously, Alito's position is that the Court decided the case according to the law, that it said what the First Amendment means, and that its legal expertise is entitled to respect.

Alito's response didn't signify political disagreement. It was simply self-defense — a defense of the Court. It meant: We decide cases according to the law. That is apolitical.

Justice Alito's flamboyantly insinuating himself into a pure political event, in a highly politicized manner, will only hasten [the Court's] decline.

Shaking one's head and mouthing 2 or 3 words is "flamboyant"? Alito was sitting in his seat and he evinced a subtle reaction to a severe political attack. That doesn't make what he did "highly politicized." If anyone was "highly politicized," it was Obama. Alito's response was more of a reflex, and it was, I would assume, grounded in a belief that the Court does what it is supposed to do — decide cases according to the law.

On a night when both tradition and the Court's role dictate that he sit silent and inexpressive, he instead turned himself into a partisan sideshow -- a conservative Republican judge departing from protocol to openly criticize a Democratic President...

Oh, bullshit. He's a sideshow because he flinches when hit? He's modestly human and not a mannequin. I remember when Obama expressed a desire for Supreme Court Justices with a more sensitive emotional response. Empathy.

Obama is an elected politician in a political branch and has every right to express his views on such a significant court ruling. While the factual claims Obama made about the ruling are subject to reasonable dispute, they're well within the realm of acceptable political rhetoric and are far from being "false"...

But shouldn't Obama have shown some respect for the members of the third branch of government who honored him with their presence? What is the "acceptable political rhetoric" when one person has the microphone for over an hour and everyone else is supposed to listen respectfully? Really, if it were known in advance that Obama wanted to use the occasion this way, the Supreme Court Justices should have stayed home. Or send over 1 or 2 that do opinions that the big man likes.

While Presidents do not commonly criticize the Court in the SOTU address, it is far from unprecedented either. 

The link goes to Tony Mauro at The Legal Times, who says that this kind of talk is "almost unprecedented." "Almost unprecedented" = "far from unprecedented"? Come on, Glenn. Your sleaziness is showing.

[Alito] unmasked himself as a politicized and intemperate Republican as well. 

Huh? Alito flinched at a surprising jab. The President told the Justices to their face that they were, essentially, power abusers. It's not "Republican" to believe that your work is dutiful and honest. (Is it?) Alito's gestures meant nothing more than that.

Yale Law Professor Jack Balkin documents that roughly 25% of Franklin Roosevelt's 1937 State of the Union address was devoted to criticizing the Supreme Court and various rulings which struck down his domestic legislation. 

Roosevelt's attack on the Court — quoted by Balkin — was, at the most severe point: "We do not ask the Courts to call non-existent powers into being, but we have a right to expect that conceded powers or those legitimately implied shall be made effective instruments for the common good." Think about how much more respectful that was toward the Court than the blow that made Samuel Alito flinch last night.

Greenwald concludes:

Whatever one thinks of the one paragraph of Obama's address devoted to the Citizens United ruling, it was not "unprecedented."

Who is he quoting there? Balkin doesn't say "unprecedented." Is it Mauro's "almost unprecedented"? For all his annoying verbiage, Greenwald can't get anywhere in this effort to show that Obama was just fine and Alito did something outrageous. Pathetic!