Legal Theory Blog has recently recommended two Yale Law Journal essays: Abbe R. Gluck’s Intrastatutory Federalism and Statutory Interpretation: State Implementation of Federal Law in Health Reform and Beyond; and Michael C. Dorf and Neil Siegel’s forthcoming YLJO essay, “Early-Bird Special” Indeed!: Why the Tax Anti-Injunction Act Permits the Present Challenges to the Minimum Coverage Provision. Mike Sacks and John Celock also feature a discussion of Dorf and Siegel’s essay in their recent Huffington Post article, Supreme Court Can’t Dodge Health Care Law’s Fate Under Bill From GOP Lawmaker.

In Intrastatutory Federalism and Statutory Interpretation: State Implementation of Federal Law in Health Reform and Beyond, published in the December 2011 issue, Abbe R. Gluck explores the oft-ignored topic of state implementation of federal law. Gluck raises the question of whether doctrine should protect “intrastatutory federalism,” which she defines as the “informal federalism” that emerges when states carry out acts of Congress. She argues that statutory interpretation canons fail to address the complicated issues that arise in the intrastatutory-federalism context, and she suggests a range of possible doctrinal responses to this increasingly prevalent phenomenon.

In “Early-Bird Special” Indeed!: Why the Tax Anti-Injunction Act Permits the Present Challenges to the Minimum Coverage Provision, Michael C. Dorf and Neil Siegel examine whether the Tax Anti-Injunction Act (TAIA) bars the Supreme Court from reviewing the current challenges to the Patient Protection and Affordable Care Act (ACA). While most of the commentary on the TAIA issue has focused on the question of whether the ACA’s penalty provisions fall within the TAIA’s definition of “tax,” Dorf and Siegel adopt an alternative and original approach. Dorf and Siegel argue that the TAIA does not bar the review because “the present challenges to the ACA do not have ‘the purpose’ of restraining tax assessment or collection.” That purpose must be immediate because if the TAIA extended to challenges with the indirect purpose of restraining tax assessment or collection, it would also bar tax refund suits. ACA challenges cannot have the direct purpose of barring review because “the very authority to assess or collect will not exist until long after the litigation is concluded.”