Freedom Line Blog

Tim had a great post explaining why the 4th Circuit’s dismissal of the two Obamacare lawsuits is not all that big a deal. He’s absolutely right, in terms of ultimate effects. At the American Spectator (in the first of my three unrelated, half-formed thoughts), I explain why on legal grounds the rulings are an absolute outrage anyway, even though, as Tim said, they don’t really harm the overall argument against the individual mandate as the issue moves inexorably toward the Supreme Court.

As I explained:

The grounds on which the judges made the decision are so ludicrous as to be intellectually bankrupt.

Against all reasonable evidence and against the rulings of every other court, both liberal- and conservative-dominated, that has considered the issue, this Fourth Circuit panel concluded that the mandate actually operates as a “tax.” Congress has broader powers to tax than it does merely to regulate; thus, legal challenges to a tax face a higher bar. Because these obstreperous judges say it is a tax that hasn’t actually been imposed yet (it has been passed by Congress but not yet implemented), they say the university has suffered no harm yet and thus can’t sue. The absurdity is that the mandate is in no way a tax. By both definition and implementation, it imposed no tax but instead a penalty for non-compliance. President Obama himself repeatedly argued in public that it wasn’t a tax. Congress didn’t call it a tax. And every other court — at least four district courts and two appeals courts — that has analyzed this claim has made mincemeat of the administration’s contention that it is a tax. Most of those courts haven’t just rejected the claim; they have eviscerated it.

As I said on my radio show last night (in the introductory 15 minutes, before I interviewed Rick Santorum), this is why the fights over judges are so important.  Bad judges are an affront to constitutional republicanism. And this ruling by three bad, liberal judges is an abomination.