The recent decision by the Fourth Circuit Court of Appeals to dismiss Virginia v. Sebelius and Liberty v. Geithner on procedural grounds, though loudly trumpeted by the "news" media and other Obamacare advocates, was written off by many constitutional scholars as a disappointing but relatively unimportant ruling. The reaction of Cato's Ilya Shapiro was typical: "The dismissal of Virginia's lawsuit on standing grounds merely removes one particular plaintiff from consideration, even as 26 states and numerous non-state plaintiffs remain in separate suits." Shapiro also noted, in passing, that the dismissal of Liberty v. Geithner was "interesting" because it was the "first-ever finding that the individual mandate is a tax." For supporters of the health care law this part of the ruling was more than merely interesting.
Some left-leaning legal scholars see a ray of hope in the Liberty v. Geithner ruling because Judge Diana Motz, the Clinton appointee who resurrected the tax issue, invoked the Anti-Injunction Act (AIA). AIA forbids legal challenges to taxes before they go into effect and the IRS has tried to collect them. Because the mandate doesn't take effect until 2014, experts sympathetic to "reform" hope this new perspective will cause the Supreme Court to put off its encounter with ObamaCare. According to Kevin C. Walsh, who teaches law at the University of Richmond, "[T]he Supreme Court could conclude that it lacks jurisdiction to rule on any of the challenges to the individual mandate." And, considering the denunciations to which the Court was subjected pursuant to Bush v. Gore, the justices may indeed be reluctant to join the judicial fray in 2012.
However, while this course might be convenient for a Court chary of ruling at the height of a presidential election, it would also suggest that Obama is a liar. In September of 2009, when challenged by George Stephanopoulos on the question of whether the mandate was a tax, the President emphatically denied it. Stephanopoulos reminded him that it forces individuals to give their money to insurance companies or the government and asked, "How is that not a tax?" Obama responded with the usual auto insurance canard. Stephanopoulos then pulled out a dictionary and read the definition of "tax," whereupon Obama laughed and made the Orwellian claim that the necessity of using a dictionary somehow proved his point. He still insisted that the mandate is "absolutely not a tax increase."
The Justice Department has, of course, contradicted the President in countless legal filings. The government lawyers tasked with defending the law realized early on that Obamacare's insurance mandate was going to be a tough sell as part of Congress' power to regulate interstate commerce. Thus, within a few months of the law's passage, the DOJ was arguing that the mandate is constitutional because "requiring individuals to buy health insurance is an exercise of Congress' taxing authority." Until the Fourth Circuit issued its ruling, however, this argument was universally panned -- even by courts otherwise disposed to view the law in a favorable light: "[The tax claim] has been consistently rejected by every judge who has ruled on it, including several who concluded that the mandate is constitutional on other grounds."
And, even if they wish to continue contradicting the President, the government's lawyers may find it difficult to exploit the opening Judge Motz has provided by invoking AIA. In their May 31 Fourth Circuit brief, they conceded that "the Anti-Injunction Act is not applicable to these proceedings." The Obama DOJ's already-tarnished credibility would be damaged even further if it reverses itself at this late date. As Bradley Joondeph of the Santa Clara Law School asks, "What does the Justice Department do now? It has already essentially flip-flopped on this question.… Does it now wish to flip back?" One would think not. On the other hand, it should be remembered that this is the same group of lawyers who successfully petitioned U.S. District Judge Roger Vinson to stay his own injunction last March.
Perhaps it's time for the scholar-in-chief to weigh in on the applicability of the Anti-Injunction Act. As recently as a month ago, the President was cheerfully holding forth at town hall meetings concerning the various constitutional questions surrounding his "signature domestic achievement." Presumably, his learned opinion on AIA would be every bit as valuable as his pontifications on Supreme Court precedent regarding the individual mandate. It would certainly be helpful to know if he still disagrees with his own Justice Department lawyers on whether the mandate is, in fact, a tax. Likewise, it would be good to know if he believes the Anti-Injunction Act presents the high court with what he and his fellow professors of constitutional law refer to as a "jurisdictional bar."
Unfortunately, as Grace-Marie Turner recently pointed out, the President has been unusually taciturn on Obamacare of late. If his uncharacteristic verbal costiveness continues, Obamacare's shrinking cadre of supporters must put all their hope in the ability of the DOJ to convince more judges that the man is a liar. They must make the case that, the President's prevarications notwithstanding, the mandate is indeed a tax. If they can get over that bar, plus make the sale on Judge Motz' AIA theory, there is a chance that ObamaCare and its mandate will survive -- until November 6, 2012.
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