Erin Hawley raises one of my favorite pet issues left unresolved by NFIB–whether the Anti-Injunction act was jurisdictional, and barred the Court of jurisdiction to resolve the case.

It seems the Court dodged the issue again in Hobby Lobby. The contraceptive mandate is accompanied by a penalty, labelled may times as a tax. Shouldn’t Hobby Lobby have had to pay the tax, and then seek a refund.

Erin addresses this issue in the YLJ Forum. Here is the abstract:

Burwell v. Hobby Lobby Stores may well be the biggest case of the term. And by its own rules, the Supreme Court lacked jurisdiction. An obscure statute, the Anti-Injunction Act of 1867 (“the AIA”), imposes a pay-first requirement for federal tax challenges. The deeply held conventional wisdom is that the AIA is a jurisdictional statute, and there is a good argument that the AIA applies to the contraception mandate. As we learned from National Federation of Independent Business v. Sebelius, 132 S.Ct. 2566 (2012), the best evidence of whether Congress intended the AIA to apply is the text. The mandate at issue in Hobby Lobby, 26 U.S.C. § 4980D, expressly refers to the employer assessment as a tax—24 times. In light of NFIB, the Supreme Court’s failure to address the AIA was a serious mistake.