Liberty Counsel Files Supplemental Brief to Address Post-Argument Questions of Court

Liberty Counsel
NEWS RELEASE
Contact: PUBLIC RELATIONS DEPARTMENT - 800-671-1776 or Media@LC.org
FOR IMMEDIATE RELEASE: May 31, 2011
www.LC.org
Richmond, VA - Today Liberty Counsel filed a Supplemental Brief on behalf of Liberty University and two private plaintiffs challenging the Individual and Employer Mandates found in the Patient Protection and Affordable Care Act, better known as "ObamaCare" (Act). Mathew Staver, Founder of Liberty Counsel and Dean of Liberty University School of Law, argued that case on May 10, 2011, at the U.S. Court of Appeals for the Fourth Circuit.

Following the argument, the panel of three judges asked that the parties file a Supplemental Brief addressing three questions, namely whether the federal Anti-Injunction Act (AIA) applies to the case, thus divesting the federal courts of jurisdiction to hear the matter. The AIA applies to the payment of taxes and requires that the party challenging a tax first pay the tax, apply for a refund, and then file suit if the refund is unacceptable.

The AIA does not apply because it only applies to the payment of taxes, but the exactions in the Mandates are penalties, not taxes. In passing the Act, Congress explicitly stated that it was doing so under the Commerce Clause. Moreover, taxes are for raising revenue, and yet the Mandates were not listed in the Act as revenue-generating, although 17 other provisions were so listed. The Brief further argues that the court must reach the central question of whether the Mandate penalties are permissible under the Commerce Clause or taxes under the Taxing and Spending Clause. The Mandates clearly are penalties, and Congress asserted its authority under the Commerce Clause, not the Taxing and Spending Clause. Either way, the central question must be reached now.

The Supplemental Brief also argues that even if, hypothetically, the AIA applies, the exception to the application of the AIA should allow the plaintiffs to challenge the Act now. The Act is currently going into effect, and the plaintiffs cannot wait until 2014 to pay the penalty and then challenge the payment. Over 1,000 employers have already received temporary waivers because of the onerous burden of the Act now, long before the Mandates' penalties arise in 2014.

Staver, who is also Dean of Liberty University School of Law, said: 

"The federal court of appeals should address the central question of whether Congress exceeded its authority under the Constitution when it passed the Individual and Employer Mandates. ObamaCare far exceeds the authority of Congress and it is burdening individuals and employers now with onerous requirements that cannot wait to be challenged in 2014."