Fourth Circuit Requests Supplemental Briefs in Liberty, Virginia Cases


By Hadley Heath

Today the Fourth Circuit panel who heard the Liberty University and Virginia cases on May 10 have requested that Appellants and Appellees alike file Supplemental Briefs (of no more than 10 pages) explaining the potential consequences of applying the "Anti-Injunction Act" to these cases.

The Anti-Injunction Act is a law that requires that, should a plaintiff sue for damages due to an unconstitutional tax, the tax must've already been implemented.  What does that have to do with ObamaCare, you might ask?

One of the defenses that the federal government has tried to use (at times) for the individual mandate is that the "penalty" for failure to obtain insurance is no more than a tax.  There's no doubt that Congress has a Constitutional taxing power. 

But for some reason, policymakers chose to implement a "penalty" and "not a tax" in ObamaCare.  Nevertheless, the Fourth Circuit's request for these Supplemental Briefs indicates that the Court may disregard the verbiage about mandates and penalties and rule that the money collected from the illegally uninsured (post-2014) is tax money.

The Anti-Injunction Act then, would not allow plaintiffs to sue until 2014, when the individual mandate takes effect.

(At the district court level, in the Florida case, it's worth noting that Judge Roger Vinson compared the federal government to Alice-in-Wonderland characters for their word tricks.)

If the Fourth Circuit decides to rule that the individual mandate penalty is indeed a tax, they may decide to dismiss the Liberty University and Virginia cases.  Ken Klukowski spells out the implications of this in today's Washington Examiner:

This means that the main arguments over Obamacare would likely wait another few months, until the Eleventh Circuit federal appeals court decides the big multistate case that will be argued on June 8. Then the Supreme Court could take one or all of these cases.

Before this order, it looked like Obamacare might be argued at the Supreme Court next spring, with a decision in June 2012. Now it might instead be argued in October 2012, right before the presidential election, with a decision after the election.

This unexpected turn in the Obamacare cases serve as a stark reminder that presidential elections shape the federal courts, and with them the binding interpretation of the Constitution.

It seems in this instance that the federal courts are attempting to shape the presidential election.


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