Proud Parents Give Birth To Beautiful Six Pound, Eight Ounce Grandstanding Political Statement | Main | Chalaque Says That Ireland "Overcame Occupation," Which I'm Sure The British Will Love Hearing
May 23, 2011

Fourth Circuit Good News and Bad News

David Freddoso reports that the Fourth Circuit, which is considering the Virginia ObamaCare lawsuit, has ordered supplemental briefing in the case on an issue mostly ignored because it is so farfetched.

This afternoon, the Fourth Circuit panel considering the Commonwealth of Virginia's challenge to Obamacare has asked for supplemental briefs from all parties related to the arguments about the federal government's constitutional powers of taxation. This may mean that the court is setting itself up to rule that the penalty for not purchasing insurance under Obamacare is, in fact, a tax and not a penalty at all, and that therefore the court lacks jurisdiction to hear the case.

Most of the discussion of the individual mandate has focused on the Commerce Clause and the Necessary and Proper Clause. One of the defenses that the Obama Administration has raised is that it is a tax, even though Obama explicitly stated in no uncertain terms during the run-up to the vote on the bill that it was not a tax and the language of the statute does not use the word tax. If it is then under the Tax Anti-Injunction Act courts would not have jurisdiction over the ObamaCare lawsuits until taxpayers pay in full before challenging the legality of any tax.

No court, including the courts that ultimately upheld the individual mandate under the Commerce Clause and the Necessary and Proper Clause have held that the individual mandate is a constitutional exercise of the Tax and Spend Clause. This is because, among other problems, it would be an unconstitutional capitation tax.

Freddoso thinks that this is bad news:

This completely unexpected development strongly increases the odds that the separate Florida lawsuit against Obamacare will be the decisive one that eventually reaches the Supreme Court. As the Examiner reported two weeks ago, the three judges on the Fourth Circuit panel are all Democrat appointees, including two Obama appointees.

Well, he's right that the "Florida" suit will probably be the decisive one (more on that below), but not because these Democratic appointees have decided to muck about with a bad tax argument. In fact, I think this is good news. If the judges are taking a swing at the dubious tax argument, then they're probably having a hard time with the Commerce Clause and Necessary and Proper arguments. It is possible one or more of the judges has decided that untrammeled federal power to intrude into private economic decisions is a bridge too far. They may be hoping to dispose of the sticky Commerce Clause problem by finding authority for the mandate in the Tax Clause. A decision on tax grounds is a decision that we will win in the Supreme Court.

As far as the Florida lawsuit, which is actually a multi-state lawsuit against ObamaCare, being the important one, I've written before that it is the lawsuit to keep an eye on. Unlike the headlines-grabbing (and politically ambitious) Virginia AG, who jumped as fast as he could to be first in line with these lawsuits and managed only to challenge the individual mandate, the multi-state suit challenged multiple sections of ObamaCare on several different grounds and with several different types of plaintiffs, therefore giving the appellate courts and (eventually) the Supreme Court more options to find it unconstitutional. Moreover, it is procedurally the better case since, of course, it actually won below on the severability argument.

digg this
posted by Gabriel Malor at 06:13 PM

| Access Comments

Recent Comments
rd: "349 Put me in the "desperate to leave but have agi ..."

jsg: "Lolgf I was here first. I'm not leaving And I' ..."

altered states: "I'm an Idaho native. People keep moving here and t ..."

runner: "It is possible that wrong kind of people are movin ..."

the guy that moves pianos: "Extreme situations tend to drive people to extreme ..."

blake - semi lurker in marginal standing: "Put me in the "desperate to leave but have aging p ..."

Eeyore: "I'll add that some of us live in places that have ..."

BignJames: "I think we have enough on our hands with the Red G ..."

nurse ratched : "And if you stay you forfeit the right to bitch. I ..."

Skip: " Do you have a McLaren dealership in your town? Di ..."

willow: "Circa. Well said ..."

Sharon(willow's apprentice): "Catman, I feel exactly the same way. I always had ..."

Recent Entries

Polls! Polls! Polls!
Frequently Asked Questions
The (Almost) Complete Paul Anka Integrity Kick
Top Top Tens
Greatest Hitjobs

The Ace of Spades HQ Sex-for-Money Skankathon
A D&D Guide to the Democratic Candidates
Margaret Cho: Just Not Funny
More Margaret Cho Abuse
Margaret Cho: Still Not Funny
Iraqi Prisoner Claims He Was Raped... By Woman
Wonkette Announces "Morning Zoo" Format
John Kerry's "Plan" Causes Surrender of Moqtada al-Sadr's Militia
World Muslim Leaders Apologize for Nick Berg's Beheading
Michael Moore Goes on Lunchtime Manhattan Death-Spree
Milestone: Oliver Willis Posts 400th "Fake News Article" Referencing Britney Spears
Liberal Economists Rue a "New Decade of Greed"
Artificial Insouciance: Maureen Dowd's Word Processor Revolts Against Her Numbing Imbecility
Intelligence Officials Eye Blogs for Tips
They Done Found Us Out, Cletus: Intrepid Internet Detective Figures Out Our Master Plan
Shock: Josh Marshall Almost Mentions Sarin Discovery in Iraq
Leather-Clad Biker Freaks Terrorize Australian Town
When Clinton Was President, Torture Was Cool
What Wonkette Means When She Explains What Tina Brown Means
Wonkette's Stand-Up Act
Wankette HQ Gay-Rumors Du Jour
Here's What's Bugging Me: Goose and Slider
My Own Micah Wright Style Confession of Dishonesty
Outraged "Conservatives" React to the FMA
An On-Line Impression of Dennis Miller Having Sex with a Kodiak Bear
The Story the Rightwing Media Refuses to Report!
Our Lunch with David "Glengarry Glen Ross" Mamet
The House of Love: Paul Krugman
A Michael Moore Mystery (TM)
The Dowd-O-Matic!
Liberal Consistency and Other Myths
Kepler's Laws of Liberal Media Bias
John Kerry-- The Splunge! Candidate
"Divisive" Politics & "Attacks on Patriotism" (very long)
The Donkey ("The Raven" parody)
Powered by
Movable Type 2.64