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Extra briefs in healthcare cases coming in

Virginia Attorney General Ken Cuccinelli II has filed the commonwealth’s response to a request for additional briefing in Virginia’s two legal challenges to the individual insurance mandate in the federal healthcare legislation.

Last week the 4th U.S. Circuit Court of Appeals ordered supplemental briefing in the two pending cases that challenge the Patient Protection and Affordable Care Act. The appellate court has asked parties in both cases to address questions about a “tax” under the Anti-Injunction Act.

The AG’s brief acknowledges that when the AIA applies, federal courts generally are divested of jurisdiction over challenges to federal tax collection. But the brief says the AIA does not apply to Commonwealth v. Sebelius. Virginia will incur no direct financial liability under the penalty enacted in the PPACA and so it cannot use any statutory procedure to contest the constitutionality of the penalty, the supplemental brief says.

The only way the injury to Virginia’s sovereign interests – “the sweeping aside of a Virginia statute” – can be addressed is through the Sebelius suit, so the AIA cannot bar Virginia’s action, the AG argues.

The federal appellate court also asked whether the insurance mandate can be called a “tax” under the AIA without also deciding whether the mandate is a “tax” under the U.S. Constitution. Under the state’s interpretation of controlling precedent, the court in the Sebelius case need not reach the question of whether the penalty qualifies as a tax for purposes of Art. 1, § 8, cl. 1, the brief argues.

In response to the court’s question about a possible refund suit, the AG reiterates that the AIA cannot bar the state’s claims in Sebelius because there is no opportunity for Virginia or anyone else to raise Virginia’s claims of a sovereign injury in a refund action.

By Deborah Elkins

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