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: