In an attempt to bypass the majority-Democratic Fourth Circuit, Virginia Attorney General Ken Cuccinelli filed a petition today asking the Supreme Court to bypass this intermediate court and hear his challenge to the Affordable Care Act immediately. The petition, which is exceedingly unlikely to prevail, is vintage Cuccinelli. It warns of a “steady drumbeat of new lawsuits” that “punctuate the news.” It attacks the so-called “florid deal-making” that led to an act being “cobbled together in secret.” The ACA, Cuccinelli warns, “has roiled America.”
Yet, while the petition spares no adjectives in expressing Cuccinelli’s disdain for health reform, one thing is conspicuously absent from the petition — a key argument that formed the basis of Judge Roger Vinson’s erroneous decision that the ACA cannot be sustained under Congress’ taxing power.
Vinson’s opinion is absolutely awash with errors. One of his biggest mistakes is his claim that the provision of the ACA which requires most Americans to either carry insurance or pay slightly more income taxes somehow ceases to be a valid exercise of Congress’ power to “lay and collect taxes” because Congress did not use the word “tax.” Nothing in the Constitution requires Congress to use certain magic words to invoke its enumerated powers. And no precedent exists suggesting that a fully valid law somehow ceases to be constitutional because Congress gave it the wrong name.
Like Vinson, Cuccinelli also claims that the ACA did not validly invoke Congress’ taxing power:
On the tax issue, the threshold problem for the Secretary is that there is a justiciable difference between a tax and a penalty. “ ‘A tax is an enforced contribution to provide for the support of government; a penalty . . . is an exaction imposed by statute as punishment for an unlawful act.’ ” A penalty not supporting a tax is not a tax penalty but a naked penalty requiring an enumerated power other than the taxing power to support it. Furthermore, even if the penalty were a tax “there comes a time in the extension of the penalizing features of the so-called tax when it loses its character as such and becomes a mere penalty with the characteristics of a regulation and punishment.” Because at this point the penalty requires a supporting enumerated power independent of the taxing power—and the only possible one would be the Commerce Clause—the tax argument collapses back into the Commerce Clause argument.
Much of this paragraph is gobbledygook, but none of it mentions Vinson’s absurd claim that a law magically becomes unconstitutional if Congress gives it a certain name.
It is very unusual for a litigant to ignore an argument that has already swayed a judge on a lower court. Perhaps this is a sign that even Ken Cuccinelli recognizes that Vinson reasoning was flawed.