DC Circuit Court upholds Obamacare

On Tuesday, the United States Circuit Court of Appeals for the District of Columbia upheld the individual mandate, that all must purchase insurance or pay a penalty, as constitutional.  It was a 2-1 decision, but, to me as an attorney the dissent was the most thought provoking.

No, not because the dissent found the mandate unconstitutional (which it didn’t), but because it found the court did not have jurisdiction to consider the case.  Stay with me on this, because I must first bore you with the law.

In 1867  Congress passed the Anti-Injunction Act. Basically it says that a person cannot sue to halt the enforcement of a tax until after that tax takes effect.  Thus, if Obamacare’s mandate that all purchase insurance or pay a “penalty” is really a “tax”, then no federal court has jurisdiction (i.e. the ability to hear the case) until the tax takes effect.  As the Obamacare “penalty” does not have to be paid until 2015, if the “penalty” is really a “tax”, then, constitutional or not, no one can challenge it until 2015.

Hopefully, the above hasn’t caused your eyeballs to glaze over, and, you are still interested.

Judge Kavanaugh found the “penalty” to be a “tax”, and thus said the court could not hear the case until 2015.  But it is other words in his dissenting opinion that  are more than fascinating.  He points out (at page 48) that,

…the Executive Branch told 10 separate district courts that the Anti-Injunction Act barred these cases…The Executive Branch later changed its mind about the Anti-injunction Act, however, presumably because of an understandable policy desire to have courts resolve the constitutional question about the individual mandate sooner rather than later.

But, could there be another reason?  In 2015 under a different administration, could Obamacare face the same treatment as President Obama gave to the Defense of Marriage Act, i.e., when challenged in court, we will simply not defend it.

There is another interesting quote (at page 100).

Unlike some other courts that have upheld the mandate on Commerce Clause grounds and disclaimed the implications, the majority here is quite candid–and accurate–in in admitting that there is no real limiting principle to its Commerce Clause holding…I credit the majority for its refreshing candor.

In other words, under the majority opinion, Congress can do whatever it pleases as long as they contend that they are doing so in the name of the Commerce Clause.

Somehow I doubt that is what the Founding Fathers had in mind.

11 replies
  1. phil
    phil says:

    Why bother to have a Constitution?? According to Bozo and his beltway scoundrels, anything they want to do is constitutional, while the radical things that we want to do, such as? freedom of speech, freedom OF (not from!)? religion, the right to keep and BEAR arms, et cetera, are clearly unconstitutional.

    • HamHocks
      HamHocks says:

      How has your freedom of speech, religion, or arm bearing been violated? Have you lost these freedoms or was that just hyperbole? It’s hard to tell in here lately.

  2. gillie28
    gillie28 says:

    Sad.? This?suit was?brought by a religious group, basing arguments on the fact that?forcing people to buy health care?violates religious freedoms.? Of interest to me because the Scriptures teach that healing of physical sicknesses and disease?is possible providing certain spiritual steps are taken (depending on the situation).? So, there goes my argument against getting it!!!? I wonder what exactly the plaintiffs?presented to the court.? Hopefully, a list of confirming Scriptures…if not, shame on them for wasting everyone’s time, including the Lord’s.

  3. gillie28
    gillie28 says:

    um, sammy, so the founding fathers?had in mind a universal health law that was ill-thought out, unread by politicians who passed it anyway, and unpopular with those who actually read and understood it…that’s what you’re saying?? And I’m not against health-care for those who genuinely need help…just that it is something that needs to be well-considered and implemented at a time when the country can afford it!

    • Lynn
      Lynn says:

      That is a great idea.? I’ll say anything to be exempt and there is no way anyone can prove you are not a Christian Scientist.

  4. Gary J
    Gary J says:

    Nothing against you SOS but lawyers can play the darnedest tricks. This was very well planned and thought out by the best lawyers money can buy. Just to skirt people in my country that don’t want this and to buy votes.

  5. winnie
    winnie says:

    Well, seeing as the Constitution isn’t taught in school, maybe they can teach the commerce clause.? *smh*

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