2019—In concurring in the denial of rehearing en banc of his panel ruling in CIC Services v. IRS, Judge Eric L. Clay accuses his seven dissenting conservative colleagues of “textbook judicial activism” and of trying “to inflict death by distorted originalism on the modern administrative state.” In particular, he objects to their conclusion that the Anti-Injunction Act does not prohibit a suit seeking to set aside an Internal Revenue Service information-reporting requirement that is backed by civil and criminal penalties.
Alas for Clay, a unanimous Supreme Court, in an opinion by Justice Kagan, will vindicate the dissenters in a ruling in May 2021.