This afternoon, the (4th Circuit) panel ordered the parties to file supplemental briefs by May 31 explaining the consequences if the court holds that the Anti-Injunction Act applies. 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 okay because it is a tax. While the political repercussions of such a decision seem obvious, the legal implications are serious, too.
Under the Anti-Injunction Act, no one can sue to challenge the legality of a tax 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. Therefore, if it is ruled to be a tax, then no one will have standing to sue until 2014. The Fourth Circuit cases would be dismissed.
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