Fate of Obamacare may hinge on whether mandate is ruled a tax 

Federal appeals judges dropped an Obamacare bombshell this week that could change the timetable for when the U.S. Supreme Court will ultimately decide whether the president’s signature law is unconstitutional.

Two major lawsuits challenging the constitutionality of Obamacare were argued May 10 before the U.S. Court of Appeals for the 4th Circuit. One was brought by Virginia’s Republican Attorney General, Ken Cuccinelli, arguing that the “individual mandate” forcing all Americans to buy health insurance is unconstitutional. The other was brought by Liberty University law school dean Mat Staver.

Federal appeals are heard by three-judge panels chosen at random. On this 4th Circuit panel, one judge was appointed by President Bill Clinton and two were appointed by President Barack Obama.

Believe it or not, this seemed like very good news for Cuccinelli and Staver. It appeared they would lose their appeals quickly (probably sometime between July and September), putting them in a position to petition the Supreme Court immediately and get a decision before the 2012 election.

But the 4th Circuit may be on its way to ruining those plans. On Monday, the panel ordered the parties to file supplemental briefs by May 31 explaining the consequences if the court holds that the Tax Anti-Injunction Act of 1867 applies to this case. That’s a bomb for one simple reason: The Anti-Injunction Act applies to federal taxes.

This means that the appellate judges on this case may hold that the Obamacare individual mandate is OK because it is a tax — a position no other court has ever embraced.

The Anti-Injunction Act forbids court challenges to the legality of  taxes until the tax has been paid.

The individual mandate doesn’t go into effect until 2014. If it is ruled to be a tax, this could foreclose upon this challenge until then at least. Although General Cuccinelli and Dean Staver could ask the Supreme Court to take up the entire case immediately, such a ruling on jurisdiction would make the High Court far less likely to do so.

Or the court might take the case, but limit its decision to the question of whether the fines for noncompliance with the individual and employer mandates are taxes.

This means that the main arguments over Obamacare would likely wait a few more months, until the 11th Circuit federal appeals court decides the big multistate case in Florida that will be argued June 8. Then, the Supreme Court could take one or all of these cases.

Examiner legal contributor Ken Klukowski is a research fellow with Liberty University.

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Ken Klukowski

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