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This morning's newspapers report an ominous development in the ObamaCare litigation, now pending in the U.S. Supreme Court:
The Court posted a seemingly minor but potentially important administrative change that reminds us that it could postpone a final ruling on the constitutionality of ObamaCare until the middle of 2016!
Specifically, the high Court increased the time it will devote to hearing oral arguments on whether the mandate to purchase health insurance is a "tax" for purposes of something called the Tax Anti-Injunction Act (26 U.S.C. § 7421(a)).
Why is that important? Because while Congress lacks any power in the Constitution to take over the health care industry, it does have the power to tax. And if it can persuade the Court that the health care mandate is really just a valid exercise of the taxing power, then the chances go up that the Court will find ObamaCare constitutional. The logic of this situation is paradoxical:
1) If the Court finds the mandate is a tax, it will probably uphold ObamaCare.
2) If the Court postpones a final ruling on the law's constitutionality because it feels the aforementioned Tax Anti-Injunction Act requires it to do so, that decision by itself would signal that the Court believes the mandate is a tax, in which case ... see point 1.
We could find ourselves in a kind of legal limbo. Because of how the Tax Anti-Injunction Act works -- about which, more anon -- the Court would not be able to render a final judgment until several years from now, thereby denying voters in this fall's elections a critical piece of information: What does the Supreme Court think about ObamaCare's constitutionality?
This would ensure that President Obama wouldn't have to suffer the political blow of having the Supreme Court strike down his signature domestic achievement before the election -- though it would subtly signal that that achievement might be upheld, eventually. It would also give the unpopular law more time to take root, and thereby give its supporters more time to stave off repeal.
The historically lengthy oral arguments in the case, HHS v. Florida -- now expanded by 30 minutes, to six hours -- are slated to take place in late March. A formal ruling in the case is expected by early July. But will it be the final ruling? That's now less clear.
Okay, so what is the Tax Anti-Injunction Act? First enacted in 1867, this law sweepingly forbids any court from hearing any case in which any person attempts to prevent the assessment or collection of a tax. Once a tax has been assessed and collected, however, a court may hear a case on it.
The question in the present case is: Is the health mandate penalty a tax, or not? Although Congress was careful not to describe the penalty as a "tax," it does have some of the hallmarks of one. The language establishing it is found in the Internal Revenue Code, and it is collected by the IRS, through the regular income tax return filing and refund process.
But do those things make it a "tax"? Not necessarily, because past Court rulings have said that it's only a "tax" if its primary effect is to "raise a revenue." If it's primary effect is to coerce people into doing something or not doing something, then it's a really just a mandate masquerading as a tax. The health care mandate's primary effect is clearly to make people buy health coverage, not to raise a revenue. It raises very little revenue, in fact.
So far, most lower federal courts who have considered this issue have taken the view that the mandate is not a tax but a penalty. But one judge has found the other way. And for complicated legal and political reasons, the Obama Administration has actually been taking boths sides on the issue. In Congress, the President's men say it's not a tax; in court, they say it is one.
ObamaCare doesn't go into full operation until January 2014. The first time the IRS can levy the mandate penalty/tax won't be until folks file their tax returns, in mid-April 2015. The slow judicial process will likely delay a final judicial ruling until mid-2016. By which time -- perhaps the public will have resigned itself to accepting this awful law?
Both sides in the case claim they would prefer that the Court not punt to 2016.
What makes today's development ominous is this. The Court agreed to grant the extra time, despite having already given an unprecedented five and a half hours to this historic case and a full 60 minutes to this specific question. Raising it to 90 minutes -- the same amount of time they are allotting to the issue of "severability" (i.e., whether the Court could strike down only the mandate, or must strike down the whole Act with it) -- suggests that they take the Anti-Injunction Act issue quite seriously.
Today's development is just another reminder that we can't count on the courts to repeal the government takeover of health care.
However the courts finally rule, we citizens must keep fighting to protect our threatened health care liberties, in the halls of Congress -- and at the ballot-box.
Dean Clancy is FreedomWorks' Legislative Counsel and Vice President, Health Care Policy
P.S. Last week, FreedomWorks' Constitution Defense Fund filed a formal legal brief in this important litigation.