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.