• 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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    • Sorry to be rude and snarky here, but there’s no such thing as “good” or “bad” news in this game. The only question of any relevance whatsoever here is how Justice Kennedy will vote.

      • I’m holding out hope for Scalia on the Commerce Clause as well, given his vote in Raich. Medicaid expansion may be a different story.