- The Cuccinelli Sideshow: Virginia’s attorney general is one of the most strident opponents of the Affordable Care Act, but his case is also the weakest. The Supreme Court held in Massachusetts v. EPA that the Constitution “prohibits” states from suing the federal government “to protect her citizens from the operation of federal statutes” — and Virginia’s lawsuit clearly tries to “protect” its citizens from the operation of a federal law. To get around this problem, Virginia passed an unconstitutional law claiming to nullify part of the Affordable Care Act, and then claimed that this unconstitutional act allows it to make an end run around the Supreme Court’s decision. The Fourth Circuit had no patience for this frivolous argument.
- It’s A Tax!: The Affordable Care Act’s so-called “individual mandate,” which was challenged in these two lawsuits, requires most Americans to either carry health insurance or pay slightly more income taxes. Because the law does not take effect until 2014, however, no one has actually paid this tax yet and no one will for a few years. The reason why this matters is because the Tax Anti-Injunction Act does not permit plaintiffs to sue in order to prevent a tax from being collected. They can only wait until after they have paid the tax and then sue claiming they are entitled to a refund. Because the mandate is a tax, and because no one has paid the tax yet, Judge Motz held that the Tax Anti-Injunction Act prevents anyone from challenging the mandate.
- It’s A Tax! And It’s Constitutional!: Judge Wynn joined Motz’ opinion dismissing the case without reaching the question of whether the law is constitutional. He also agreed with the dissenting judge’s argument that the law is a valid exercise of Congress’ power to regulate commerce. Additionally, Judge Wynn argued that the fact that the mandate is a tax is also sufficient reason to uphold the law as constitutional because the Constitution gives Congress the authority to “lay and collect taxes.”
- Commerce: Finally, Judge Davis dissented from Motz’ conclusion that the law is a tax for purposes of the Tax Anti-Injunction Act. He then explained that he would uphold the law under Congress’ power to “regulate commerce…among the several states.”
So, in summary, two judges (Motz and Wynn) voted to dismiss the Liberty University case on jurisdictional grounds. Two judges (Wynn and Davis) also said that they would uphold the law on the merits. As a technical matter, this means that the case was dismissed without an opinion on the merits. As a practical matter, however, a majority of the Fourth Circuit panel unambiguously concluded that the Affordable Care Act is constitutional.