In a blog post yesterday, National Review Online's Carrie Severino attempted to downplay two decisions by the U.S. Court of Appeals for the Fourth Circuit that threw out challenges to the Affordable Care Act.
Severino wrote: "Both decisions rest on grounds that will not affect the other appellate decisions now en route to the Supreme Court." However, Severino obfuscated the fact that two of the three judges also said that the challenged portions of the Affordable Care Act were valid under the Constitution, while the third judge declined to say one way or the other.
In Liberty University, Inc. v. Geithner, a two-judge majority said it did not have jurisdiction over the case, because of a federal statute, the Anti-Injunction Act, that bars lawsuits "for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person." The majority ruled that the law constituted a tax for purposes of the Anti-Injunction Act and dismissed the case.
Unmentioned by Severino, however, was that one judge, Andre Davis, dissented and wrote that "both the individual and employer mandates pass muster as legitimate exercises of Congress's commerce power." In doing so, Judge Davis arrived at the same result as Judges Jeffrey Sutton and Boyce Martin on the U.S. Court of Appeals for the Sixth Circuit, which upheld the Affordable Care Act. Davis also joined dissenting Judge Stanley Marcus on the U.S. Court of Appeals for the 11th Circuit, who also wrote that the law was unconstitutional.
But that's not all: one of the two Fourth Circuit judges who joined the majority decision dismissing the case, Judge James Wynn, wrote that the dissent's position that the law was constitutional under the Commerce Clause "is persuasive." Wynn also stated that the Affordable Care Act was constitutional for another reason: It was a legitimate exercise of Congress' taxing power.
In a concurring opinion, Wynn said: "[W]ere I to reach the merits, I would uphold the constitutionality of the Affordable Care Act on the basis that Congress had the authority to enact the individual and employer mandates under its plenary taxing power."
So, to the extent that the Supreme Court places any significance on the views of lower court judges, a majority of the lower court judges who have decided the issue have said that the Affordable Care Act is constitutional.