A Possibly Telling Request From The Court In The Virginia ObamaCare Lawsuits
The 4th Circuit has asked for supplemental briefs on an issue that could put a quick end to the lawsuits against the Affordable Care Act.
The ACA Litigation Blog reports that the three judge panel hearing the appeal of Virginia v. Sebelius and Liberty University v. Geithner has sent the following order to all the parties:
The court directs the parties to file supplemental briefs, not to exceed 10 pages, by the close of business on May 31, 2011 addressing the following questions:
1. When applicable, does the Anti-Injunction Act, 26 U.S.C. § 7421(a), deprive a federal court of subject-matter jurisdiction? See J.L. Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 5-8 (1962). If so, does it divest federal courts of jurisdiction in this case? See Bob Jones University v. Simon, 416 U.S. 725, 736-48 (1974).
2. Can a court determine that a challenged exaction qualifies as a “tax” for purposes of the Anti-Injunction Act without reaching the question of whether the exaction qualifies as a “tax” for purposes of Art. I, § 8, cl. 1? Compare Bailey v. George, 259 U.S. 16 (1922), with Bailey v. Drexel Furniture Co., 259 U.S. 20 (1922).
3. Assuming the Anti-Injunction Act does apply in this case, does a plaintiff have the ability to challenge the exaction provided by § 5000A in a refund suit or otherwise? See 26 U.S.C. § 7422(a); 28 U.S.C. §§ 1331, 1340, 1346.
Entered at the direction of Judge Motz with the concurrence of Judge Davis and Judge Wynn
All of this is directed at the question, which has not actually been accepted by any of the Courts that have heard it, that the individual mandate is actually a tax, and thus subject to the much less stringent requirements of the General Welfare Clause. The Anti-Injunction Act, usually called the Tax Anti-Injunction Act, becomes an issue because it essentially provides that a Federal Court has no jurisdiction to hear any case regarding the collection of a tax, even if it is brought by the person against whom the tax is assessed, unless one of the fourteen exceptions applies. The basic purpose of the law is to force someone who wants to challenge a tax assessment to actually pay the tax and then challenge it through the IRS’s administrative procedures.
This may indicate that the three judges in the 4th Circuit are looking for a way to rule on the mandate without directly ruling on the Commerce Clause issue. As I already noted when I wrote about the oral arguments, the judges also seemed to be focusing on the question of whether or not Virginia has legal standing to pursue a lawsuit in its case based solely on the fact that it passed a statute making insurance mandates illegal.
If the judges rule that the Anti-Injunction Act bars the suit until the tax has been paid, then that would mean that neither of these cases could proceed until after 2014 when the mandate (and associated penalties) go into effect. What will be interesting to see is whether either the Courts or the litigants in the other major cases, which are pending in the Sixth and Eleventh Circuits respectively, bring this issue up. Briefing is essentially completed in Thomas More Center v. Obama (the Sixth Circuit Case) and nearly complete in Florida v. HHS (the Eleventh Circuit Case). However, since the same Solicitor General has taken over oral argument in all three cases one would expect he would bring the issues raised in the 4th Circuit up in oral argument before the other panels. How they’ll react to it remains to be seen, however if they’re at all inclined to deal with these cases in a manner that essentially ends them for now this could be the way to do it.