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Federal attorneys endorse review of Obamacare 'tax'

Attorneys for Barack Obama fighting on behalf of his massive Obamacare law, which former House Speaker Nancy Pelosi famously said had to be passed before Americans could “find out what is in it,” now have agreed with Liberty University’s argument that a conflict remains over when a so-called “tax” is actually a tax.

“Respondents do not oppose petitioners’ request that the [Supreme] court reconsider its order denying review in this case, grant the petition for a writ of certiorari, vacate the court of appeals’ decision, and remand for further consideration,” said a submission to the high court signed by U.S. Solicitor General Donald Verrilli Jr. and others.

“Petitioners, Liberty University and two individuals who do not have health insurance coverage, brought this suit in the United States District Court for the Western District of Virginia,” the government brief to the high court explains. “As relevant here, they contended that the minimum coverage and employer responsibility provisions were beyond Congress’s Article I powers to enact and also that those provisions violate the First Amendment’s religion clauses and the equal protection component of the Fifth Amendment’s Due Process Clause.”

While the 4th Circuit ruled that the challenges were barred because of the Anti-Injunction Act, which says a “tax” must be paid before it can be challenged, the Supreme Court’s decision on Obamacare ruled that the penalties were in some cases a tax and other cases not.

Government attorneys in the brief said the Supreme Court’s ruling in National Federation of Independent Businesses, which called Obamacare constitutional, “held that the Anti-Injunction Act does not bar a pre-enforcement challenge to the minimum coverage provision.”

“The court of appeals incorrectly held that the Anti-Injunction Act bars petitioners’ challenges to the minimum coverage provision,” the government wrote. “Because of that jurisdictional holding, the court of appeals did not address any of petitioners’ challenges to that provision on the merits.

“In seeking rehearing … petitioners observe that the court of appeals’ jurisdictional holding also prevented that court from considering on the merits their claims based on the First and Fifth Amendments. … Under the circumstances of this case, respondents do not oppose further proceedings in the court of appeals to resolve them, including under the Anti-Injunction Act with respect to petitioners’ challenge to the employer responsibility provision.”

The 4th Circuit had ruled 2-1 that the Obamacare “tax” had to be paid before a court could entertain a challenge. But then the Supreme Court determined in another case, NFIB, that the Anti-Injunction Act does not apply to the individual mandate.

It failed, however, to make a decision in that dispute, leading Liberty University to seek a rehearing.

“If the court grants the request, now unopposed, then Liberty University v. Geithner will be the first case in the nation in which a federal court of appeals would consider challenges to the employer mandate and the Free Exercise of Religion claim. The case could then go back to the Supreme Court in 2013,” according to an analysis from Liberty Counsel.

“I am very pleased that the Department of Justice agrees that the case should go back to the court of appeals to address the unresolved issues in Obamacare. Obamacare is the biggest funding of abortion in American history,” said Mat Staver, founder and chairman of Liberty Counsel and dean of Liberty University School of Law.

“Obamacare will for the first time require employers and individuals to directly fund abortion. This abortion mandate collides with religious freedom and the rights of conscience,” he said.

Earlier, he told WND he was pleased the Supreme Court had told the Justice Department to respond to the argument.

Liberty University contends both the individual and employer mandates are unconstitutional on the grounds that they infringe upon the freedom of religious expression.

The case was filed in March of 2010 on the very same day President Obama signed the bill into law. It’s been stalled because a federal appeals court ruled that the suit could not proceed because no one had been penalized or taxed yet through the mandates. The Supreme Court’s June decision essentially struck down that ruling.

Staver said no court has ever ruled on the constitutionality of the employer mandate or the religious freedom concerns. Abortion funding is at the heart of the contention that the mandates violate the right to religious expression — something Staver says he saw right away but others didn’t notice until the new government rules on mandatory contraception coverage.

The Obama administration insists there is no taxpayer funding of abortion in the laws, but Staver pinpoints why he believes that position is patently false.

“It funds it in two ways,” said Staver. “First all, for the individual, for the first time in history, it requires each individual to pay a particular fee and that goes directly into an abortion fund and that fund funds abortion. This fee doesn’t go into a general fund, some of which funds other surgeries or medical treatment, some of which might fund abortion. No, this goes into a specific fund that funds abortion. (It’s the) very first time in history you can trace the dollar to the actual abortion.”

Staver says that provision forces individuals and business leaders to subsidize something they vehemently oppose.

“It requires religious employers, and other employers but certainly religious employers to also fund abortion as well,” he said. “And for Liberty University, a Christian university, and for others that’s simply a line we can’t cross. That is a direct collision with the free exercise of religion.”

Staver says an ultimate victory in this case could devastate Obamacare, especially if the individual mandate goes down.

“It could ultimately make a big hole in the bottom of the Obamacare boat or completely torpedo it and sink it altogether.”

Several other individual lawsuits are pending on behalf of Christian company owners who say the orders require them to violate their religious faith.

Already, two federal judges have decided to issue injunctions preventing enforcement of the mandate against the companies in those cases until a resolution is reached.