Sponsored Content




Intermarkets' Privacy Policy
Support


Donate to Ace of Spades HQ!



Recent Entries
Absent Friends
westminsterdogshow 2023
Ann Wilson(Empire1) 2022
Dave In Texas 2022
Jesse in D.C. 2022
OregonMuse 2022
redc1c4 2021
Tami 2021
Chavez the Hugo 2020
Ibguy 2020
Rickl 2019
Joffen 2014
AoSHQ Writers Group
A site for members of the Horde to post their stories seeking beta readers, editing help, brainstorming, and story ideas. Also to share links to potential publishing outlets, writing help sites, and videos posting tips to get published. Contact OrangeEnt for info
Cutting The Cord And Email Security
Moron Meet-Ups





















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
Lost In Space: "Enterprise U.2 8TB drives are cheaper than consume ..."

Pixy Misa: "[i]3 Good day Pixy, hope Spring is sufficiently br ..."

actually a hornet: "Buzzz, mother-------. ..."

m: ">>>it rewards other things instead. Interestingnes ..."

Skip : "Couple, yesterday after this fell asleep until 6 ..."

Biden's Dog sniffs a whole lotta malarkey,: "BOING! ..."

m: "330 ..."

Lost In Space: "Good morning Skip. Hope you had a few good hours o ..."

Lost In Space: "Good day Pixy, hope Spring is sufficiently breakin ..."

Skip : "PIXY NOOD IS UP ..."

m: "Busy bees? ..."

Skip : "G'Day everyone ..."

Recent Entries
Search


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