Affordable Care Act (ACA) - Obamacare

[Michael Scally MD]

Re: The Constitutionality of the Individual Mandate for Health Insurance

The simple case for the Affordable Care Act’s constitutionality
The simple case for the Affordable Care Act’s constitutionality : SCOTUSblog

Dawn Johnsen, of Indiana University Maurer School of Law, discusses the constitutionality of the Affordable Care Act for our on-line symposium.

The following is an essay for our symposium on the constitutionality of the Affordable Care Act by Dawn Johnsen, Walter W. Foskett Professor of Law at the Indiana University Maurer School of Law. She teaches and writes about issues of constitutional law, and previously served as the Acting Assistant Attorney General for the Office of Legal Counsel, U.S. Department of Justice under President Clinton.

Explosive partisan politics and proliferating litigation and commentary surround the Patient Protection and Affordable Care Act. All of this has obscured the simplicity of the case for Congress’s authority to enact the law. The Commerce Clause basis for the law – the issue that has predominated in the courts – is straightforward. The question ultimately for the Supreme Court will be whether it should create a new limit on Congress’s authority to use its otherwise-broad power to regulate interstate commerce to address the national health care crisis.

Anyone paying close attention – who has slogged through the lengthy opinions, listened to or read about the oral arguments, followed the clever attacks seeking to frame the law as an unprecedented liberty intrusion – can appreciate the risk of becoming lost in the weeds. When the Supreme Court addresses the question, as it surely will, it should resist efforts to portray the law as raising complex, undecided issues, and instead emphasize the degree to which fundamentals support the law.

 

[james2012]

Re: The Constitutionality of the Individual Mandate for Health Insurance

The simple case for the Affordable Care Act’s constitutionality
The simple case for the Affordable Care Act’s constitutionality : SCOTUSblog

Dawn Johnsen, of Indiana University Maurer School of Law, discusses the constitutionality of the Affordable Care Act for our on-line symposium.




Explosive partisan politics and proliferating litigation and commentary surround the Patient Protection and Affordable Care Act. All of this has obscured the simplicity of the case for Congress’s authority to enact the law. The Commerce Clause basis for the law – the issue that has predominated in the courts – is straightforward. The question ultimately for the Supreme Court will be whether it should create a new limit on Congress’s authority to use its otherwise-broad power to regulate interstate commerce to address the national health care crisis.

Anyone paying close attention – who has slogged through the lengthy opinions, listened to or read about the oral arguments, followed the clever attacks seeking to frame the law as an unprecedented liberty intrusion – can appreciate the risk of becoming lost in the weeds. When the Supreme Court addresses the question, as it surely will, it should resist efforts to portray the law as raising complex, undecided issues, and instead emphasize the degree to which fundamentals support the law.

Fundamentals don't support the law. Read the Federalist Papers, Anti-Federalist Papers, the history of the Constitution, and the Constitution itself. Fundamentally this law is unconstitutional. Just because some liberal prof says no and stomps his foot like a big baby is not going to change this fact. And the very true case of how many of these types of stories - which possess a tone of begging on the part of author - are now appearing, is a clear indication that many liberal "scholars" know the clock is ticking on ObamaCare.

 

[james2012]

Re: The Constitutionality of the Individual Mandate for Health Insurance

http://ca.news.yahoo.com/appeals-court-rules-against-obama-healthcare-law-171829777.html

11th circuit strikes down ObamaCare mandate as unconstitutional. With no severability clause in the law, if any part of ObamaCare is found unconstitutional, the entire law is nullified.

 

[Michael Scally MD]

Re: The Constitutionality of the Individual Mandate for Health Insurance

Affordable Care Act predictions
The George Washington University Law School’s Orin Kerr predicts the path forward for Affordable Care Act litigation.

This contribution for our symposium is by Orin S. Kerr, a professor at George Washington University Law School, where he teaches criminal law and procedure. His scholarly work focuses on the Fourth Amendment and computer-related crimes. Professor Kerr was a law clerk for Justice Anthony M. Kennedy for the October Term 2003.

Here are my predictions on the future of the mandate litigation in the Supreme Court: Affordable Care Act predictions : SCOTUSblog

Putting the numbers together, I expect 6 votes for the mandate, 1 against, and 2 uncertain. If my numbers are right, the mandate will be upheld by a vote of anywhere from 6-3 to 8-1.

 

[Michael Scally MD]

Re: The Constitutionality of the Individual Mandate for Health Insurance

What does the mandate regulate?
Case Western Reserve University School of Law’s Jonathan Adler argues that the outcome of Affordable Care Act litigation will turn on how the Court answers questions related to the Necessary and Proper Clause.

This essay for our symposium is by Jonathan H. Adler, Professor of Law and Director of the Center for Business Law and Regulation at the Case Western Reserve University School of Law. He is a regular contributor to the popular legal blog, The Volokh Conspiracy. What does the mandate regulate? : SCOTUSblog

 

[Michael Scally MD]

Re: The Constitutionality of the Individual Mandate for Health Insurance

Limited government, federalism, and the Affordable Care Act
Florida International University College of Law’s Elizabeth Price Foley argues that the challenges to the Affordable Care Act raise legitimate constitutional concerns.

The following essay for our symposium is by Elizabeth Price Foley, the Institute for Justice Chair in Constitutional Litigation and Professor of Law at Florida International University College of Law. Her research centers on the intersection of health care and constitutional law. She is the author ofLiberty for All: Reclaiming Individual Privacy in a New Era of Public Morality (Yale 2006), The Law of Life and Death (Harvard 2011), and is currently working on a book about the tea party, forthcoming in early 2012 from Cambridge University Press. Limited government, federalism, and the Affordable Care Act : SCOTUSblog

 

[Michael Scally MD]

Re: The Constitutionality of the Individual Mandate for Health Insurance

Will the Supreme Court give Congress an unlimited mandate for mandates?
George Mason University School of Law’s Ilya Somin argues that the individual mandate is unconstitutional.

This essay for our symposium is by Ilya Somin, an Associate Professor at George Mason University School of Law. He has written amicus briefs on behalf of the Washington Legal Foundation, several members of Congress, and a group of constitutional law scholars in three of the cases challenging the individual mandate. Will the Supreme Court give Congress an unlimited mandate for mandates? : SCOTUSblog

 

[Michael Scally MD]

Re: The Constitutionality of the Individual Mandate for Health Insurance

http://ca.news.yahoo.com/appeals-court-rules-against-obama-healthcare-law-171829777.html

11th circuit strikes down ObamaCare mandate as unconstitutional. With no severability clause in the law, if any part of ObamaCare is found unconstitutional, the entire law is nullified.

Health-Law Mandate Ruled Unconstitutional
Health-Law Mandate Ruled Unconstitutional by Appeals Court - WSJ.com

AUGUST 12, 2011
By BRENT KENDALL

A divided U.S. appeals court in Atlanta ruled Friday that a key provision of last year's federal health-care overhaul is unconstitutional, siding with a group of 26 states that challenged the law.

The 2-1 ruling marks the Obama administration's biggest defeat to date in the multifront legal battle over the health-care law. The decision directly conflicts with a ruling issued in June by a federal appeals court in Cincinnati that upheld the law.

The U.S. Court of Appeals for the 11th Circuit ruled that Congress exceeded its constitutional powers when it required individuals to purchase health insurance or pay a penalty.

"This economic mandate represents a wholly novel and potentially unbounded assertion of congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them re-purchase that insurance product every month for their entire lives," Judges Joel Dubina and Frank Hull said in a jointly written opinion.

The decision affirmed part of a January ruling by U.S. District Judge Roger Vinson of Florida, who ruled the health-insurance mandate unconstitutional.

The appeals court, however, overturned the portion of Judge Vinson's decision that voided the entire health-care law. The appeals panel said the unconstitutional insurance mandate could be severed from the rest of the law, with other provisions remaining "legally operative."

The Cincinnati-based Sixth Circuit Court of Appeals upheld the health law on a 2-1 vote in June. The Supreme Court is widely expected to provide the final word on the law's constitutionality, possibly as soon as its next term, which begins in October and runs through June 2012.

 

[james2012]

Re: The Constitutionality of the Individual Mandate for Health Insurance

Dream on. Even if true - and I doubt Orin Kerr who has been wrong so many times I've lost count - Perry can just kill it by giving everyone waivers. Then it is on to a Constitutional Convention, because the need for it will be very high - a pressure tipping point as states and companies begin dumping employees on the exchange and facing bankruptcy in the process. Either way, it goes down.

And trust me, the SCOTUS does not want a Constitutional Convention because they will be in the crosshairs and their very careers in jeopardy.

And everyone keeps forgetting Kennedy stating, after Obama dissed the SCOTUS in the SOTU, that he will not leave the court until Obama is out of office.

Nope, this thing is going down one way or the other. The SCOTUS can save their butts by doing the right thing, or they shake in fear when the public and states react in way not seen since the late 1700s. The state of this nation is way past a tipping point when an inflection will occur that will give rise to a severe public backlash.

I think the SCOTUS knows this. But I personally don't care what they think. When Perry wins, ObamaCare will be defunded as there will be no need to enforce it when waivers are handed out to everyone. As much as I don't like Mitt Romney, his idea to do this is an excellent one. Waivers for all and bye, bye ObamaCare.

 

[james2012]

Re: The Constitutionality of the Individual Mandate for Health Insurance

Health-Law Mandate Ruled Unconstitutional
Health-Law Mandate Ruled Unconstitutional by Appeals Court - WSJ.com

AUGUST 12, 2011
By BRENT KENDALL

A divided U.S. appeals court in Atlanta ruled Friday that a key provision of last year's federal health-care overhaul is unconstitutional, siding with a group of 26 states that challenged the law.

The 2-1 ruling marks the Obama administration's biggest defeat to date in the multifront legal battle over the health-care law. The decision directly conflicts with a ruling issued in June by a federal appeals court in Cincinnati that upheld the law.

The U.S. Court of Appeals for the 11th Circuit ruled that Congress exceeded its constitutional powers when it required individuals to purchase health insurance or pay a penalty.

"This economic mandate represents a wholly novel and potentially unbounded assertion of congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them re-purchase that insurance product every month for their entire lives," Judges Joel Dubina and Frank Hull said in a jointly written opinion.

The decision affirmed part of a January ruling by U.S. District Judge Roger Vinson of Florida, who ruled the health-insurance mandate unconstitutional.

The appeals court, however, overturned the portion of Judge Vinson's decision that voided the entire health-care law. The appeals panel said the unconstitutional insurance mandate could be severed from the rest of the law, with other provisions remaining "legally operative."

The Cincinnati-based Sixth Circuit Court of Appeals upheld the health law on a 2-1 vote in June. The Supreme Court is widely expected to provide the final word on the law's constitutionality, possibly as soon as its next term, which begins in October and runs through June 2012.

The proof is in the pudding. The law itself has no severability clause. By definition this means the court does not need to even state the law is nullified. To do so is extraneous as it is obvious. Without such a clause the law by definition goes down. The 11th circuit kept politics out of the decision by deciding not to state the obvious and hedged their bets by leaving it to the SCOTUS to do so.

I can see the setup now. If the mandate is unconstitutional, then there is no way to cover ObamaCare except by raising taxes. Good luck with that. If you think the public is pissed now, this will cause the SCOTUS to be redefined to a marginal role in what will be the most exciting thing to happen in this country since the last Constitutional Convention. I don't even think nullification is necessary anymore. Just have the convention.

Now let's look at the dissension:

What does this statement tell you from the one dissenter: The majority "has ignored the undeniable fact that Congress' commerce power has grown exponentially over the past two centuries and is now generally accepted as having afforded Congress the authority to create rules regulating large areas of our national economy," Marcus wrote.

Was this our founders intention by enumerated powers? That courts should assist the Congress in gaining power "exponentially" over our lives? What an admission by the dissenter! This is the crux of the problem that faces us today. Great power resided in a few in the British isles. That kind of focused power lead to abuses that lead to the War of Independence. I'm sure our founders intended the same for our government. NOT.

Oh yeah. Bring. It. On. You think we are in fiscal trouble now, you ain't seen nothing yet. There is not way the country is going to allow this to happen. Once they see there is Constitutional Solution out of this mess, you can bet your a$$ it will be pursued relentlessly.

 

[james2012]

Re: The Constitutionality of the Individual Mandate for Health Insurance

Hit myself on head. Man, I can't believe I missed this. The Court's ruling on severability has a method to it's madness that is genius (emphasis mine): Why 11th Circuit struck down Obamacare's mandate | Campaign 2012

Today’s ruling by the 11th Circuit Court of Appeals striking down the national health care law’s individual mandate hinged on an issue that has consistently tripped up the Obama administration during oral arguments in several of the legal challenges to the law. The essential question is: if courts uphold the individual mandate, what is the constitutional principle that would limit the U.S. Congress’s exercise of its Commerce Clause power?

This issue has often been framed by asking whether the power being claimed could allow future Congress’s to force Americans to eat broccoli or join a gym. Obama’s lawyers, while acknowledging that there’s no Supreme Court case that directly grappled with the issue, have countered by making the “health care is unique” argument. That is, since virtually everybody will need health care at some point, it’s a special case. Yet as I wrote in June, “simply saying the health care market is unique doesn't actually create a very clear or understandable limit to Congressional power.”

And in a 2-1 ruling, with Clinton-appointed Judge Frank Hull joining the majority, the court agreed with this assessment.

“Ultimately, the government’s struggle to articulate cognizable, judicially administrable limiting principles only reiterates the conclusion we reach today: there are none,” the court wrote.

The government had tried to make a series of fact-based arguments for why health care is unique, but that failed to sway the court, concluding that future Congresses could make all sorts of arguments as to why any given “unique.”

“Presumably, a future Congress similarly would be able to articulate a unique problem requiring a legislative fix that entailed compelling Americans to purchase a certain product from a private company,” the opinion reads. “The government apparently seeks to set the terms of the limiting principles courts should apply, and then asks that we defer to Congress’s judgment about whether those conditions have been met.”

The judges write that, “The government’s five factual elements of ‘uniqueness,’ proposed as constitutional limiting principles, are nowhere to be found in Supreme Court precedent. Rather, they are ad hoc, devoid of constitutional substance, incapable of judicial administration—and, consequently, illusory. The government’s fact- based criteria would lead to expansive involvement by the courts in congressional legislation, requiring us to sit in judgment over when the situation is serious enough to justify an economic mandate.”

Later on, the court reiterates that: “We have not found any generally applicable, judicially enforceable limiting principle that would permit us to uphold the mandate without obliterating the boundaries inherent in the system of enumerated congressional powers. ‘Uniqueness’ is not a constitutional principle in any antecedent Supreme Court decision.”

And the judges add that “the difficulties posed by the insurance market and health care cannot justify extra-constitutional legislation.”

The judges hammered home this point on several other occasions in a ruling that was 304 pages (including dissent).

No doubt, this is just one more step in the ongoing legal process. But today’s decision, which comes in the case brought by 26 states led by Florida and the National Federation of Independent Business, is still important for several reasons. The most obvious is that it effectively guarantees that the Supreme Court will be forced to consider this issue. While everybody has been assuming they would, it was by no means guaranteed that the Supreme Court would hear the case if the Obama administration won a clean sweep of all the cases at the appellate level. Opponents have been saying all along that they only needed one victory at the appellate level, and they got it.

Another reason is that it’s a very narrow ruling. It doesn’t strike down any part of the law other than the mandate, and it strikes down the mandate within the context of current Supreme Court precedent. In other words, it provides a clear path for Supreme Court justices to rule the mandate unconstitutional without having to revisit prior decisions. The mandate, as the 11th Circuit says, is “unprecedented.”

Further, the majority’s concerns about the lack of a limiting constitutional principle will help opponents of the law argue to the Supreme Court that upholding the mandate would actually have more radical consequences than striking it down. This may be particularly important to swaying swing justice Anthony Kennedy, although obviously it’s a fool’s errand to try to predict his thinking.

It’s important to reflect on how far we’ve come. When the legal challenges against the health care law were first launched, liberals dismissed them as “frivolous.” Now, a Clinton-appointed federal appeals judge has struck down the individual mandate, agreeing that: “The federal government’s assertion of power, under the Commerce Clause, to issue an economic mandate for Americans to purchase insurance from a private company for the entire duration of their lives is unprecedented, lacks cognizable limits, and imperils our federalist structure.”

Frigging genius. As far as Kennedy goes, we know what he will do. He has already telegraphed it. ObamaCare is going down in the SCOTUS.

 

[Michael Scally MD]

Re: The Constitutionality of the Individual Mandate for Health Insurance

Health insurance mandate struck down
Health insurance mandate struck down : SCOTUSblog

The Eleventh Circuit strikes down the new health insurance purchase mandate, but declines to nullify the entire law. Expansion of Medicaid is upheld. The ruling, if it stands, could assure a Circuit split on the mandate, thus raising the chances of Supreme Court review.


In a massive, 300-plus page opinion, a divided Eleventh Circuit Court on Friday struck down, as beyond Congress’s power, the new federal health care law’s requirement that virtually every American obtain health insurance by the year 2014. The Court, however, did not strike down the entire law, as a federal judge in Florida had done earlier, because the Circuit Court found that the insurance mandate could be lopped off without nullifying all of the sweeping law. It also upheld the law’s expansion of state duties under the Medicaid program for the poor. The opinion is here. http://sblog.s3.amazonaws.com/wp-content/uploads/2011/08/11th-CA-on-ACA-8-12-11.pdf

This was the second federal appeals court ruling on the constitutionality of the insurance mandate, and it conflicted directly with the first — by the Sixth Circuit. The Sixth Circuit, while not ruling directly on Congress’s authority to adopt that provision, turned aside a constitutional challenge to it. Even so, the conflicting rulings almost certainly assured that the Supreme Court would step in to resolve the dispute — if the ruling Friday is not successfully challenged in an en banc review by that Circuit. The federal government has the option of seeking review of the three-judge panel decision by the full 11-judge bench of the Circuit.

The Sixth Circuit ruling is already being challenged in the Supreme Court (Thomas More Law Center, et al., v. Obama, et al., docket 11-117).

Besides finding that Congress lacked the commerce-regulating power to adopt the insurance requirement, the Circuit Court ruled that the mandate could not be upheld under Congress’s power to tax, since it concluded that the mechanism for enforcing the requirement is a penalty, not a tax. The three-judge Circuit panel was divided — 2 to 1 — only on the insurance provision. The majority opinion — totaling 207 pages — was written jointly by Chief Judge Joel F. Dubina and Circuit Judge Frank M. Hull. Circuit Judge Stanley Marcus wrote an 84-page dissenting opinion on the insurance issue. There was also a 13-page appendix outlining the major provisions of the huge law, signed by President Obama in March of last year, and immediately attacked in court.

One other Circuit Court — the Fourth — has held a hearing on the insurance mandate, but has yet to rule.

Although the new law measures 975 pages, in the version used by the Eleventh Circuit Friday, only two of its provisions were challenged in the lawsuit by 26 states, two individuals, and the National Federation of Independent Business. The two challenged provisions were the requirement that virtually everyone have health insurance by 2014, and the law’s expansion of coverage — and state financial responsibility — for the federal-state Medicaid program, which provides health care benefits for the poor. The federal government had defended the insurance mandate under both Congress’s power over interstate commerce, and its taxing authority. It defended the Medicaid expansion under Congress’s power to pass spending bills.

The Circuit Court had little trouble upholding unanimously the Medicaid expansion. It rejected the states’ argument that the changes would be so burdensome for state governments that it would amount to federal coercion of the states to pass new laws even if they do not want to do so, and the claim that the states really would have no choice because of their need for the federal funds provided under the program. Such coercion, the states contended, would violate the Constitution.

 

[Michael Scally MD]

Re: The Constitutionality of the Individual Mandate for Health Insurance

The Constitutional challenges to the PPACA: Why don’t we go back to first principles
The University of Chicago Law School’s Richard A. Epstein analyzes the relationship between the “internally flawed” logic of Wickard v. Filburn and the constitutionality of the Affordable Care Act.
The Constitutional challenges to the PPACA: Why don’t we go back to first principles : SCOTUSblog

This essay for our symposium is by Richard A. Epstein, the James Parker Hall Distinguished Service Professor Emeritus of Law and Senior Lecturer at the University of Chicago Law School. Professor Epstein started his legal career at the University of Southern California, where he taught from 1968 to 1972. He served as Interim Dean from February to June, 2001.

 

[Michael Scally MD]

Re: The Constitutionality of the Individual Mandate for Health Insurance

Commerce Clause Challenges to Health Care Reform
by Mark A. Hall

Download Full Article (PDF file, 256 KB) http://www.pennumbra.com/issues/pdfs/159-6/Hall.pdf

When Congress drafted the Patient Protection and Affordable Care Act (PPACA), Democratic lawmakers and most legal scholars had good reason to be confident of its constitutionality. Under long-established precedent, Congress clearly has the authority, if wanted, to enact a single-payer socialized insurance system using its powers to tax and spend for the “general welfare.” Far short of this, PPACA’s complex blend of regulations, subsidies, and an individual mandate is vastly more protective of insurance markets and individual freedoms than any “Medicare for All” scheme would have been. The idea for an individual mandate originated with Republican lawmakers, who never questioned its constitutionality until now. Congress has nearly unbridled authority to regulate products sold in or affecting interstate commerce, and health insurance is clearly one such product. Further, considering the well-understood economics of health insurance, a mandate to obtain insurance is obviously part and parcel of regulating how insurers design, price, and sell their products.

Something went wrong on the way to the courthouse, however. District courts in Virginia and Florida have ruled that Congress lacks the constitutional authority to require legal residents to obtain health insurance. Three other federal judges have upheld federal authority in cases that special interest groups and individual litigants brought.

Despite the split outcomes (which fell along the party lines of the judges’ appointing presidents), these courts agreed on several issues. No court thus far has found a violation of individual rights protected by the Bill of Rights, and no court so far has accepted (or indicated much support for) the government’s position that Congress’s tax power supports the mandate. In Florida ex rel. McCollum v. U.S. Department of Health & Human Services, the Northern District of Florida rejected the states’ arguments that forcing them to implement key PPACA provisions violates the Tenth Amendment. Thus the Commerce Clause and the ancillary Necessary and Proper Clause will be the primary focus of ongoing litigation over the constitutionality of health care reform. Conservative legal scholars who have previously criticized the expansive scope of federal commerce power see in this litigation the opportunity to impose new limits on its capaciousness. Accordingly, the Commerce Clause arguments merit close attention in order to understand their strengths, weaknesses, and implications for other areas of constitutional doctrine and public policy.

 

[james2012]

Re: The Constitutionality of the Individual Mandate for Health Insurance

Commerce Clause Challenges to Health Care Reform
by Mark A. Hall

Download Full Article (PDF file, 256 KB) http://www.pennumbra.com/issues/pdfs/159-6/Hall.pdf

And not court has figured out if the people don't want it, it ain't gonna happen. One way or the other, they can take their pick.

OCare is dead. Waivers for all!!

 

[james2012]

Re: The Constitutionality of the Individual Mandate for Health Insurance

Heh: Betsy McCaughey: Court Ruling 'Slams the Brakes' on Obamacare

 

[james2012]

Re: The Constitutionality of the Individual Mandate for Health Insurance

Smack. http://www.nationalreview.com/articles/274693/eleventh-circuit-takes-aim-obamacare-avik-roy?page=1

 

[james2012]

Re: The Constitutionality of the Individual Mandate for Health Insurance

The failure of RomneyCare:

http://newsbusters.org/blogs/tom-blumer/2009/07/12/wsj-romneycares-failures-ma-not-widely-known-i-wonder-why

 

[james2012]

Re: The Constitutionality of the Individual Mandate for Health Insurance

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http://washingtonexaminer.com/opinion/columnists/2011/08/obama-concedes-health-care-law-wont-control-costs#ixzz1VLXd2TJV

Well, it's about time he finally told the truth.

 

[Michael Scally MD]

Re: The Constitutionality of the Individual Mandate for Health Insurance

Health care challenge rejected
Health insurance challenge rebuffed by Fourth Circuit, finding it a premature attempt to block a federal tax provision.
Health care challenge rejected : SCOTUSblog

The Fourth Circuit Court ruled Thursday that a constitutional challenge to the new federal health care law requiring virtually everyone in the nation to have health insurance by 2014 was filed prematurely, and thus cannot go forward. In a second ruling, the Circuit Court ruled that the state of Virginia had no legal right to bring a challenge to that mandate. The two rulings were a victory for the Obama Administration, but will not prevent the insurance mandate issue from Supreme Court review, since other cases are either now at the Court or on the way. The main Circuit Court decision, a 2-1 ruling, is here; its Virginia opinion is here.

The Circuit Court ruled that the new law’s insurance mandate, enforced with a financial penalty, is a form of federal tax, and a federal law — the Anti-Injunction Act — bars lawsuits seeking to block enforcement of a tax measure before it goes into effect officially. This marked the first time that a federal appeals court had ordered an end to a constitutional challenge to the mandate based on this legal theory. In fact, the theory was abandoned by the Obama Administration when it appealed the case to the Fourth Circuit, but the Circuit Court revived it on its own.

The pair of rulings nullified one federal District judge’s ruling upholding the new provisions, and another judge’s decision to strike them down. No federal court, the Circuit Court panel said, has jurisdiction to hear such a case at this point. Circuit Judge Diana Gribbon Motz wrote both opinions; she was joined by Circuit Judge James A. Wynn, Jr., in finding the lawsuit barred under the tax injunction law. Circuit Judge Andre M. Davis dissented, arguing that the jurisdictional bar cited the majority was not a real one; Judge Davis went on to say that he would have held that the insurance mandate was within Congress’s constitutional powers. The three judges were unanimous in finding that Virginia lacked “standing” to challenge the mandate.