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Obamacare punt by Supreme Court is unlikely

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Ken Klukowski

Some lawyers are fretting that the Supreme Court will not decide Obamacare this year, instead punting, and not revisiting the subject until 2017 or so.

They might be right, but the odds remain good that the justices will hand down a decision this June settling Obamacare’s fate one way or the other.

Under the Anti-Injunction Act (AIA), a person cannot challenge the constitutionality of a tax until they (1) pay the tax, (2) demand a refund from the IRS, and (3) are denied that refund.

The AIA issue is the first one being argued next month. And just this week the Court expanded the AIA argument time from 60 minutes to 90 minutes. So everyone is abuzz that the issue is in play.

The Obamacare individual mandate doesn’t go into effect until Jan. 1, 2014. Tax returns on 2014 aren’t due until Apr. 2015. So if the Obamacare individual mandate is a tax, only after being denied relief from the IRS in 2015 could someone file suit.

So if the justices decided the mandate is a tax, the current lawsuits would be dismissed for lack of standing, and we would start all over in late 2015. On that calendar, SCOTUS would probably have the new Obamacare cases before it in 2017.

That’s possible, but unlikely. First, the individual mandate is not a tax. Instead of government taking your money—which is a tax—the government commands you how to spend your own money by buying health insurance from a private company.

Second, the penalty for disobeying the mandate is payable on your yearly tax return, but it’s not a tax. It’s a penalty, like a speeding ticket. And its legality depends on the legality of the mandate itself. If the individual mandate is invalid, then the penalty must fall with it.

So if the justices want to duck Obamacare for now, they have a route to do so. But they likely want to resolve this issue, and are completely free to do so. And the other part of Obamacare being challenged—the Medicaid issue—can be decided now regardless.

All things considered, we should still expect a final decision on Obamacare this summer.

Examiner legal contributor Ken Klukowski is on faculty at Liberty University School of Law and a fellow at the Family Research Council.

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