Legal Challenges to ACA Not Quite Finished

If you thought that the legal battle over the constitutionality of the Patient Protection and Affordable Care Act ("ACA") was put to rest in NFIB v. Sebelius, you may want to pay attention to Liberty University v. Geithner.  

Today, the United States Supreme Court granted certiorari and then returned the case to the U.S. Court of Appeals for the Fourth Circuit to consider new challenges to the ACA.

In its lawsuit, among other things, Liberty University contended that the ACA violates its First Amendment religious freedoms through the funding of abortions and other practices that it maintains are at odds with the core beliefs of the school. Liberty University also challenged the so-called "employer mandate" that requires all employers employing 50 or more people to provide health coverage to those employees, or face a penalty.

The Fourth Circuit had previously held that the mandates were "taxes," but dismissed the case for lack of jurisdiction on the grounds that the federal Anti-Injunction Act did not permit the federal courts to consider the legality of the tax until it went into effect. Because it dismissed the case on jurisdictional grounds, it did not rule on the merits of the religious freedom and employer mandate arguments. Liberty University sought review in the Supreme Court, which was denied.

In NFIB v. Sebelius, the Supreme Court unanimously held that the Anti-Injunction Act did not preclude the federal courts from deciding the constitutionality of a "tax" only after it goes into effect. Liberty University therefore filed a motion for rehearing, and the Supreme Court ordered the Department of Justice to file a response. In a somewhat surprising move, the DOJ did not oppose Liberty University's motion for pre-hearing, paving the way for today's ruling from the Supreme Court.

On remand, the Fourth Circuit will now have to consider Liberty University's arguments on their merits, and its rulings could conceivably make their way back to the Supreme Court.