Virginia Appeals Court Throws Out ObamaCare Challenges, But Doesn't Rule on the Merits of the Mandate

A three-judge panel from the 4th Circuit Court of Appeals in Richmond threw out two challenges to ObamaCare's individual mandate this afternoon, but it didn't actually rule in favor of the mandate. Instead, it dismissed both suits—one from the state of Virginia, one from Liberty University—on technicalities. 

The panel told Liberty University that it couldn't yet fight the mandate in court because the mandate is not a penalty but a tax—an unusual position taken by no other previous court, including those that ruled in favor of the mandate. (President Obama has argued variously that the mandate both is and isn't a tax.) The upshot of the court's decision that it's a tax is that it's too early to challenge the mandate; thanks to the Anti-Injunction Act, taxes can't be challenged before they are paid. 

Virginia's suit against the law was thrown out on standing grounds: Basically, the court argued that Virginia couldn't gain standing to challenge the mandate simply by passing a law banning health insurance mandates, as it did. "If we were to adopt Virginia's standing theory, each state could become a roving constitutional watchdog," the court warned. And we wouldn't want that. 

This isn't good news for the case against the mandate. But it's unlikely to have much lasting effect; indeed, by taking the odd and until-now universally dismissed (by judges) position that the mandate is, in fact, a tax, the court has likely confined its ruling to irrelevance. Thanks to the conflicting rulings on the mandate from two previous appeals courts, the Supreme Court is virtually certain to take up the case. Ultimately, the legality of the insurance mandate will be decided there.