Jurisdictional Question in Hobby Lobby, The

Authors

Erin Morrow Hawley, University of Missouri School of LawFollow

Document Type

Article

Publication Date

9-6-2014

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.

Recommended Citation

Erin Morrow Hawley, The Jurisdictional Question in Hobby Lobby, 124 Yale L.J. Forum 63 (2014)