So predictable was this, and so meaningless are these appellate rulings ultimately, that on a busier news day I wouldn’t even bother with it. Plain and simple, the Supreme Court isn’t about to let a decision as epochal as the one coming on ObamaCare to be guided by what some lower court thinks. But since we pop the champagne every time some judge strikes down the mandate, here’s the obligatory sadface for the Fourth Circuit today. What are the odds that a panel consisting of one Clinton appointee and two Obama appointees would find a massive regulatory power grab by Congress copacetic?
Lyle Denniston’s summary of the rulings (yes, there were two separate cases decided) is your best bet. Superficially, both opinions turn on procedural issues. In one decision the court found that Virginia had no standing to sue over the law because the mandate affects individuals, not states; in the other, it found that Liberty University couldn’t challenge the mandate yet because — drumroll — the mandate is actually a tax and under federal law you can’t sue over a tax until you’ve been forced to pay it. No one’s had to pay anything under the mandate because it’s not in effect yet, ergo the legal case isn’t quite ripe. And yes, before you ask, The One has insisted all along that the mandate isn’t a tax but something altogether different. In fact, as Denniston notes, so politically toxic is the tax argument that the feds actually dropped it on appeal to the Fourth Circuit even though it ended up being strong enough to win them the case. No doubt The One would prefer to see O-Care upheld by the Supreme Court for whatever reason than struck down as unconstitutional, but that day-after press conference where he has to explain that this actually is a huge new tax hike on the uninsured would be one for the ages.
As I say, though, the procedural issues were only superficial. Note this passage from Denniston:
Circuit Judge Wynn, while supporting Motz’s opinion on the tax injunction issue, offered his own opinion on the merits of the insurance-purchase mandate. He said he would uphold its constitutionality as a valid use of Congress’s power to tax. Since he regarded the penalty enforcing the mandate to be a tax, Judge Wynn explained, that leads back to the conclusion that the anti-injunction law bars the challenge.
Circuit Judge Davis, in a 73-page dissenting opinion, argued that the federal courts do have jurisdiction to rule on the challenges to the insurance-mandate and its enforcement penalty, and concluded that the mandate and penalty were a valid exercise of Congress’s authority to pass laws regulating interstate commerce. Davis dismissed the majority’s view that the courts lacked jurisdiction as a “rather strained construction” of the anti-injunction law.
In other words, a majority of the court found that ObamaCare is valid on the merits, not merely that the parties to these cases couldn’t sue. Again, that’s no surprise given the composition of the panel but the fact that the majority was split between the tax theory and the Commerce Clause theory raises the possibility that the Supreme Court could split that way too. Imagine if, say, the four conservative justices found the mandate unconstitutional, the four liberal justices upheld it on Commerce Clause grounds, and smilin’ Anthony Kennedy decided to split the baby and find that it’s unconstitutional under the Commerce Clause but constitutional under the tax power. That would save the mandate — as long as five justices think it’s constitutional for whatever reason, it’s binding law — but it would complicate the precedential value of the opinion. The next time Congress tries some massive power grab on Commerce Clause grounds and it’s challenged in court, the plaintiff could point to the ObamaCare opinion and note that five justices — a majority — found the mandate unconstitutional on that theory. All along we’ve been assuming that O-Care will rise or fall depending on where the Court lands on the Commerce Clause, but today’s ruling reminds us that that’s not necessarily true. We could end up with a bizarre result in which the Court finally draws the line on Congress’s regulatory power and yet upholds ObamaCare anyway — as a tax. I wonder if that compromise approach appeals to the famously squishy Kennedy.
If that’s not enough prospective ObamaCare litigation to keep you happy, go read this post at Cato about how those hot new federally subsidized health-insurance exchanges might not be subsidized after all. Why not? Because of … a drafting error.
Update: I tweaked the headline because it’s technically not true that the court upheld the O-Care mandate. Two of the three judges did, but they were writing independently, not as part of one of the two majority opinions. The holdings by the court were simply that the challenges can’t proceed for procedural reasons.