Author: Timothy Sandefur
In addition to dismissing the Virginia challenge to the Individual Mandate, the Fourth Circuit Court of Appeals has also issued a decision dismissing the Liberty University case, holding that the court lacks jurisdiction to review that case under the Anti-Tax Injunction Act. That is, the court holds that the Individual Mandate is a kind of tax, which courts are not allowed to review: "the AIA forbids actions that seek to restrain the Secretary from exercising his statutory authority to assess exactions imposed by the Internal Revenue Code."
This question is a bit technical, but PLF and Professor Steven J. Willis filed this letter brief arguing that the Act did not bar court review, first because the Individual Mandate penalty is not a tax in the first place, and second because even if it were a tax, it would be an unconstitutional tax, because it is not an apportioned tax, an excise, or an income tax.
The Fourth Circuit decision is the first to buy the tax argument, which the Administration has tried unsuccessfully several times. This case, like the Virginia case, is almost certainly headed for the cert. pool.