New inquiry on health care
on May 23, 2011 at 3:28 pm
Raising the prospect that it may throw out challenges to the new health care law’s mandate for virtually everyone to have health insurance, the Fourth Circuit Court on Monday told lawyers in two cases to file new briefs on the scope of its authority. In two identical orders, the three-judge panel indicated it wanted to explore further how to treat the financial penalty that individuals would have to pay to the federal government if they did not obtain health coverage by 2014. (The order in the Virginia case is here; the wording is the same in the second case.)
If the penalty is found to be a “tax,” a federal law that generally bars lawsuits that seek to prevent collection of a tax could take away the courts’ jurisdiction to hear challenges to the mandate by the state of Virginia and by Liberty University. In the first of three questions posed to counsel, the Circuit Court asked when the so-called Anti-Injunction Act does deny a court jurisdiction to review a tax’s validity, and whether it would do so in these cases.
In the second, the panel asked whether a court was free to decide that the mandate penalty was a tax for jurisdictional purposes, even if it does not qualify as a tax under the Constitution’s basic grant of authority to Congress to enact tax laws.
On the third question, the panel told lawyers to discuss whether, assuming that the anti-injunction law did apply, challengers to the insurance-purchase mandate could challenge the penalty through a lawsuit for a refund, after paying it, or through another unspecified kind of lawsuit. (NOTE: A reader points out that, if a refund lawsuit is not available, then an exception to the anti-injunction law would allow the case to proceed as a challenge to a tax.)
The orders were issued in the Virginia case (Virginia v. Sebelius, Circuit docket 11-1057), and in the university case (Liberty University v. Geithner, Circuit docket 10-2347), with a deadline of May 31. The briefs are not to exceed ten pages each.
The Court heard oral argument in the cases, back to back, on May 10.
