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New challenge to the health mandates

When the Supreme Court took on the historic dispute over the new federal health care law last Term, it agreed to rule on the constitutionality of one of two insurance mandates in the law, but bypassed the other.   It ultimately upheld the requirement that virtually all individuals in the country must obtain insurance by 2014, or pay a penalty (now deemed a tax) and it said nothing, of course, about the bypassed separate requirement that larger employers provide affordable coverage for their workers or pay a stiff penalty.  Now, a Virginia university is seeking to revive its challenge to both mandates.  It has asked the Court for a new order that would revive its challenges in a lower federal court.  It did so in a rehearing petition, filed on Monday.  The Court seldom grants such petitions, but it definitely has the power to do so.

Liberty University, a religion-oriented private college in Lynchburg, Va., had its own case pending among the petitions from which the Justices chose in granting review of the Affordable Care Act (Liberty University v. Geithner, 11-438).   Its case was not granted.  But, after the Justices’ June 28 decision on the ACA, the university’s petition was simply denied review the next day.  That denial, the rehearing petition argued, should now be withdrawn and in its place there should be an order returning that case to the Fourth Circuit Court, wiping out a ruling by that appeals court against Liberty’s challenges.

If that is done, it said, Liberty will be able to press on with constitutional arguments against the individual mandate that the Justices did not consider, and constitutional arguments against the employer mandate.  If nothing is done now, it told the Court, that probably would end its case and leave its loss in the Fourth Circuit intact.

The university and two of its employees had challenged both mandates in federal courts in Virginia, losing on both in a U.S. District Court in Lynchburg.  The case then went on appeal to the Fourth Circuit.  Instead of ruling on the merits of either mandate’s constitutionality, the Circuit Court ruled that the federal courts had no authority to rule on either.  Both mandates, it said, are a form of tax, and the federal Anti-Injunction Act bars any court challenges to federal taxes before they actually go into effect and are enforced.   The Supreme Court, in its final decision, ruled that the Anti-Injunction Act did not bar the challenges to the individual mandate, although it did conclude that the penalty attached to failure by an individual to buy insurance was, in constitutional terms, a tax.

Since the Fourth Circuit turned out to be wrong, in finding that it had no jurisdiction to rule on either mandate’s validity, Liberty’s rehearing petition argued, its decision should be vacated and the Circuit Court should be told to reconsider.   If it gets the chance to press its claims, the university said in its new filing, it will contend that the individual mandate is unconstitutional because it violates the religion clauses of the First Amendment (protecting the free exercise of religion and barring official establishment of a religion), and that it discriminates against workers who for religious reasons do not have and do not want to buy insurance.  Those arguments were not considered by the Court last Term.  On the employer mandate, Liberty said, it would argue that the requirement is also invalid under the religion clauses, and is beyond Congress’s legislative powers under the Commerce Clause, the Tax and Spending Clause, and the Necessary and Proper Clause.

Under the Court’s Rule 44, governing rehearing requests, the Justices will not reconsider the denial of a petition for review unless there have been “intervening circumstances of a substantial and controlling effect,” or “other substantial grounds not previously presented.”  No response can be filed by the other side in the case — here, the federal government — unless the Court asks for it.  But, the Rule says, the Court ordinarily would not grant rehearing unless it had first asked for the other side’s views.

In its petition, Liberty contended that the Supreme Court’s final decision on ACA is the changed circumstance that now justifies rehearing after the denial of review of its case.   The Fourth Circuit, of course, did not have the Supreme Court’s ruling before it when it ruled against Liberty, the university noted.   It is now clear, the petition argued, that the Fourth Circuit does have the authority to rule on Liberty’s remaining challenges.  Thus, it asserted, the Circuit Court should now be given the opportunity to rule on Liberty’s remaining objections to both of the mandates.



Recommended Citation: Lyle Denniston, New challenge to the health mandates, SCOTUSblog (Jul. 25, 2012, 5:16 PM),