« Federalism and Libertarianism | Main | Harvard, Easter, & the Law of Evidence »

Sunday, April 04, 2010

One Last Thing ...

I said I’d go – and I will. But there’s one last thing.

As someone who has litigated public law matters for close to twenty-five years, I will say with confidence (and even wager money that I do not have) that there is no chance – absolutely none -  that lawyers challenging the individual mandate will be subject to Rule 11 sanctions.* I am so confident that I can imagine no other investment that would better secure my precarious retirement. Any wagers will be limited to (and will preferably be equal) the net worth of the bettor.

I don’t say that simply because a lawyer can always make a good faith argument that existing law should be changed – at least when the proposition has not been repeatedly rejected and the argument. I think the challenge raises some worthy questions.

I understand that, with respect to the taxing issue, one can find a precedent that is older than my wife (and me; we were born within a year of each other) balanced against a precedent that is slightly older than my mother-in-law. These hardly resolve the matter. I also know that the CBO, speaking a few years before the birth of my first grandson (and, no, I am still not eligible for senior discounts) regarded the matter as unprecedented.

It is not at all clear that a fine becomes something else when it is collected by the IRS. It is not obvious that there is no distinction between additional tax imposed for the failure to act in some way and a deduction or credit designed to encourage certain behavior. The purpose may be the same and some of the effects are equivalent, but the latter may impose certain costs and limits not entailed by the former. There is, after all, a reason that Congress did not choose to proceed by deduction or credit against a uniformly applicable income tax.

The individual mandate is, I think, the kind of case that tests the limits of broadly worded doctrine.  If it gets to the Court, it may not prevail but it will get votes.

Happy Easter to all who celebrate it.


* I speak rhetorically. Gambling is illegal in Wisconsin and gambling debts are unenforceable.

Posted by Richard Esenberg on April 4, 2010 at 09:22 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference One Last Thing ...:


There's a lot of territory between "not subject to Rule 11 sanctions" and "raises worthy questions." The challenges to the individual mandate are in that territory.

Posted by: AF | Apr 4, 2010 6:14:37 PM

I've been thinking Rule 11 not on the merits, but on the issue of standing/ripeness. After all, the mandate doesn't take effect until 2014, and the federal government is paying for all Medicaid costs until 2017. How is the individual mandate or Medicaid issue at all ripe at this point in time? And how do AGs have standing to bring such claims on behalf of individuals? They don't even have standing to bring their own 10th Amendment claims, right?

Posted by: David S. Cohen | Apr 5, 2010 2:17:41 PM

Post a comment