Freedom Line Blog

Today, a three-judge panel of the Fourth Circuit Court of Appeals ruled against challenges of ObamaCare by Virginia and Liberty University.

For several reasons, however, today’s ruling should be taken with a Jimmy Buffet-sized shaker of salt.  First, the ruling itself did not address the substantive merits or the primary Constitutional claim that ObamaCare exceeds the authority permitted by the interstate commerce clause.  Instead, the judges ruled that neither Virginia nor Liberty possessed procedural “standing,” the ability to demonstrate harm that has occurred or may imminently occur.  That is very different than a ruling that ObamaCare itself passes Constitutional muster, and at any rate is subject to change down the road as ObamaCare’s provisions are more fully implemented.  Second, two of the judges who ruled today were appointed by Barack Obama himself, and the other by Bill Clinton.  In the Fourth Circuit as a whole, however, there is an even split with seven judges appointed by Republican presidents and seven appointed by Democrats.  So the ideological makeup at an en banc hearing will be very different.  Third, the question of standing is not one within the unique expertise or authority of these three particular judges.  Quite the contrary, standing is an issue within the authority of every court in every case, because it is a requisite to move forward with any lawsuit in the first instance.  Accordingly, today’s particular ruling is at odds with not only the lower court’s standing determination, but that of the Eleventh Circuit in its recent ruling overturning ObamaCare.  Fourth, this particular panel’s decision wasn’t a surprise, as its line of questioning in May focused on the issue of standing, rather than the merits of ObamaCare.

In other words, the immediate overarching theme is that today’s ruling is not a game-changer, and certainly not a significant “W” for ObamaCare as it continues its inevitable course toward the United States Supreme Court.  Whether through the Supreme Court or through the next Congress, ObamaCare will be defeated.