Federal appeals judges dropped an Obamacare bombshell this week that could change the calendar of when the Supreme Court will ultimately decide whether the president's signature law is unconstitutional.
Two major lawsuits challenging the constitutionality of Obamacare were argued on May 10 before the U.S. Court of Appeals for the Fourth Circuit. One case was brought by Virginia's Republican attorney general, Ken Cuccinelli, arguing that the "individual mandate" forcing all Americans to buy health insurance is unconstitutional. The other case was brought by Liberty University, where law school dean Mat Staver is also challenging the law's "employer mandate," which falls on companies with more than 50 employees.
Federal appeals are heard by three-judge panels chosen at random. The three on this Fourth Circuit panel are one Clinton-appointed judge and two Obama-appointed judges.
Believe it or not, this seemed like very good news for Cuccinelli and Staver. It appeared they would lose their appeals quickly (probably sometime between July and September), putting them in a position to petition the Supreme Court immediately and get a decision before the 2012 election.
But the Fourth Circuit may be on its way to ruining those plans. On Monday, the panel ordered the parties to file supplemental briefs by May 31 explaining the consequences if the court holds that the Tax Anti-Injunction Act of 1867 applies to this case. That's a bomb for one simple reason: The Anti-Injunction Act applies to federal taxes.
This means that the appellate judges on this case may hold that the Obamacare individual mandate is OK because it is a tax -- a position no other court has ever embraced. While the political repercussions of such a decision seem obvious, the legal implications are serious, too.
The Anti-Injunction Act forbids court challenges to the legality of most taxes until after the tax has been paid. The statute specifies that no federal court has jurisdiction to hear a challenge until someone who has already paid the tax files suit, demanding a refund and the tax's termination.
The individual mandate doesn't go into effect until 2014. If it is ruled to be a tax, this could foreclose upon this challenge until then at least. The Fourth Circuit cases would be dismissed without any rulings on the Commerce Clause or the Necessary and Proper Clause, or any other argument as to why Obamacare is unconstitutional.
Although Attorney General Cuccinelli and Dean Staver could ask the Supreme Court to take up the entire case immediately, such a ruling on jurisdiction would make the high court far less likely to do so. Or the court might take the case, but limit its decision to the question of whether the fines for noncompliance with the individual and employer mandates are in fact taxes.
This means that the main arguments over Obamacare would likely wait a few more months, until the 11th Circuit federal appeals court decides the big multistate case in Florida that will be argued on June 8. Then the Supreme Court could take one or all of these cases.
Before this order, it looked like Obamacare might be argued at the Supreme Court next spring, with a decision in June 2012. Now it might instead be argued in October 2012, right before the presidential election, with a decision after the election.
This unexpected turn in the Obamacare cases serve as a stark reminder that presidential elections shape the federal courts, and with them the binding interpretation of the Constitution.
Examiner legal contributor Ken Klukowski is a research fellow with Liberty University and files amicus briefs in Obamacare cases for the Family Research Council.
