Supreme Court Revives Lawsuit Against Obamacare On Religious Grounds

November 26, 2012 7:55 a.m.

The Supreme Court has reopened a challenge to key provisions of the Affordable Care Act — one that was dismissed by a lower court last year on technical grounds, but could now become the staging ground for a new judicial fight over a piece of the law known as the employer mandate.

The challenge was brought by Liberty University, which charged that the law’s individual and employer mandates violate the institution’s religious freedom. The Virginia-based Christian college, founded by Jerry Falwell, argues that the law’s requirement that large organizations provide employees insurance could lead to the forced funding of abortion, which it says violates the First Amendment and the Religious Freedom Restoration Act.The Fourth Circuit Court of Appeals dismissed the case in September of last year on the grounds that taxpayers cannot challenge the legality of taxes that haven’t yet been assessed against them — a consequence of a century-and-a-half old law called the Anti-Injunction Act. But in its Affordable Care Act ruling this past June, the Supreme Court dismissed the standing argument, implicitly conceding that taxpayers may challenge the ACA’s mandates, even ones that have yet to take effect — providing Liberty an opening to move forward with its case. The Court agreed, and has ordered the Fourth Circuit to rehear Liberty’s case.

The Court’s move is largely a formality to ensure that the Fourth Circuit addresses the Liberty case on the merits. But the lawsuit does involve an issue that the courts have not yet considered. The individual mandate has already been upheld, but the employer mandate was not addressed in Supreme Court arguments earlier this year. Which means the Supreme Court may have breathed new life into anti-ACA jurisprudence.

“[I]t sounds like there is a merits argument in this case that was not considered by the Court last term,” said Brian Fitzpatrick, a professor at Vanderbilt University School of Law and a former clerk to Justice Antonin Scalia. “In light of the Court’s conclusion contra the Fourth Circuit on the threshold issue of the Anti-Injunction Act, I would have expected [this] if there was any plausible difference between this case and the cases last term.”

Tim Jost, a law professor at Washington and Lee University who supports the Affordable Care Act, argues that the Fourth Circuit panel that dismissed the lawsuit telegraphed that it would have ruled against Liberty on the merits anyway.

“Liberty will almost certainly lose again, and the Supreme Court will not hear the case again,” predicts Jost.

The Obama administration doesn’t appear worried. Weeks ago, the Justice Department did not object to the case moving forward.

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