4th Circuit shocker

The 4th Circuit Liberty University opinion is out, and the 2-1 majority found the individual mandate to be a tax for the purposes of the Anti-Injunction Act. Even though the Obama Administration abandoned the issue in the 4th Circuit, the Court raised it on its own, as a jurisdictional bar.  Prior TIE coverage on the 4th Circuit tax issue here and here in December.

The Anti-Injunction Act prevents pre-enforcement suits for taxes; your remedy (unless Congress says otherwise) is to pay the tax and sue for a refund. The 4th Circuit tells the plaintiffs to wait until the individual mandate penalty is imposed in 2014 and then re-file.

Jack Balkin (Yale), Gillian Metzger (Columbia) and Trevor Morrison (Columbia) filed a key amicus brief making this argument; a similar brief was filed in the 8th Circuit case, where oral arguments are expected Oct. 21, 2011.

The Court also denied standing (3-0) in the 4th Circuit case brought by the Commonwealth of Virginia. The Virginia AG should have included some individual plaintiffs in this case.

UPDATE:  even the dissent by Judge Davis is good news for the Obama Administration:

I would hold that the challenged provisions of the Act are a
proper exercise of Congress’s authority under the Commerce
Clause to regulate the interstate markets for health services
and health insurance.
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