This afternoon, the Fourth Circuit panel considering the Commonwealth of Virginia's challenge to Obamacare has asked for supplemental briefs from all parties related to the arguments about the federal government's constitutional powers of taxation. This may mean that the court is setting itself up to rule that the penalty for not purchasing insurance under Obamacare is, in fact, a tax and not a penalty at all, and that therefore the court lacks jurisdiction to hear the case.
This would make the Fourth Circuit the first court in America to buy the Obama administration's argument that Obamacare's individual mandate is, in fact, a tax. Every other court to hear an Obamacare case -- including those that have upheld the law -- have rejected this line of argument out of hand.
If the Fourth Circuit Panel rules this way against Virginia Attorney General Ken Cuccinelli's lawsuit, then this court will likely ignore the merits of the rest of the case. The Tax Anti-Injunction Act, one of the statutes that the court asks the parties to address, requires that taxpayers pay in full before challenging the legality of any tax.
This completely unexpected development strongly increases the odds that the separate Florida lawsuit against Obamacare will be the decisive one that eventually reaches the Supreme Court. As the Examiner reported two weeks ago, the three judges on the Fourth Circuit panel are all Democrat appointees, including two Obama appointees, and they hammered away at the parties challenging Obamacare during oral arguments.
For more on the specific information being requested, and additional analysis, check out Virginia lawer and blogger Paul Prados.