Obamacare's Last Best Hope

[Geee]

American Spectator:


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."