The DOJ further argues that the plaintiffs are not likely to succeed on the merits of the Commerce Clause argument. The DOJ points out that Congress specifically found that the minimum coverage provision regulates activity commercial and economic in nature - which includes economic decisions not to purchase insurance - because taken in the aggregate, the decision not to purchase substantially affects interstate commerce because, among other reasons, costs are shifted to third parties. In addition, Congress has authority to tax and spend to provide for the general welfare of citizens, so the determination of a tax penalty and what furthers general welfare is Congress' decision, unless the choice is clearly in error.

The DOJ also argues that the Anti-Injunction Act (26 U.S.C. 7421) bars a suit to enjoin collection of a tax. If an individual resists assessment of a tax penalty, he or she must first pay the tax and then file for an administrative remedy with the Internal Revenue Service, and then sue if a refund of the tax is denied. Since the plaintiffs' theory is that the penalty is an unconstitutional tax, the DOJ says, then their remedy would be regulated under the Anti-Injunction Act.


As for irreparable harm, the DOJ said that since the minimum coverage provision does not take place until 2014, there is time for the matter to be adjudicated before any possible harm is incurred from the mandate and penalty being implemented. In addition, economic harm such as a temporary loss of income is not considered irreparable.

Finally, the DOJ argues that the balance of equities and the public interest weigh strongly against granting preliminary injunction relief, saying that enjoining the minimal coverage provision would thwart reform, as the provision is vital to the comprehensive scheme of reform, at a time when the health care system in the U.S. is in crisis, "spawning public expense and private tragedy."

A decision on the preliminary injunction should be decided shortly. A status conference on the case is scheduled for June 14.

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