(UPDATE Thursday morning.   The post now includes a link to the government’s new filing.  Thanks for your patience.)

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The Obama Administration told the Supreme Court on Wednesday afternoon that it does not object to the Court clearing the way for new constitutional challenges to two key “mandates” written into the new federal health care law.  In a new filing, U.S. Solicitor General Donald B. Verrilli, Jr., chose not to challenge an opportunity for Liberty University of Lynchburg, Va., to try to press its claims in the Fourth Circuit Court based in Richmond.   The Court had asked a month ago for the government’s views.

Liberty was among the challengers to the new Affordable Care Act last Term, but its petition was simply denied by the Justices after the Court had upheld the individual insurance-purchase mandate in late June.  That denial, Liberty had argued in a rehearing petition, would deprive it of a chance to contest the constitutionality of the individual mandate on religious freedom and other grounds, and the constitutionality of a similar employer insurance mandate that was not before the Justices last Term.    If the Court now agrees to change its order on Liberty’s case, that presumably will open up the opportunity to pursue those claims in the appeals court.

Technically, what is before the Court at this stage is a plea by Liberty to vacate and remand a Fourth Circuit decision, an order that would replace last Term’s simple denial of certiorari.  The Fourth Circuit would then be obliged to take another look at Liberty’s constitutional claims.  Normally, the Supreme Court simply denies rehearing petitions in situations like this one, without even asking for a response from the other side.  However, in Liberty’s case, the Court on October 1 asked the government to react to the rehearing petition.

The Fourth Circuit Court had refused to decide any of Liberty’s challenges on the merits, because it ruled that they were barred by the federal Anti-Injunction Act.  It ordered Liberty’s case dismissed.  The Anti-Injunction Act law bars the courts from hearing any challenges to tax laws before they go into effect, in order to protect the government’s collection of tax revenues.   When Liberty’s case gets back to the appeals court, that tribunal will have the option of calling for new briefs on the impact, if any, of what the Supreme Court decided.  The Supreme Court’s decision found that the challenges to the individual mandate were not barred by the Anti-Injunction Act.

Liberty has argued that the individual mandate goes beyond Congress’s powers, and that it discriminates on the basis of religion and treats individuals differently in violation of equal protection guarantees.   It made the same constitutional arguments to the employer mandate — a requirement that larger employers must provide adequate health care insurance for their employers, or face a penalty.

In the Supreme Court decision, it treated the individual mandate as a form of tax, and it upheld it under the government’s taxing powers.  It did not rule on the religion and equality arguments that Liberty now wants to press.

In the Solicitor General’s response to the rehearing issue, Verrilli argued that Liberty’s challenge to the employer mandate was barred — and still remains barred — by the Anti-Injunction Act, as the Fourth Circuit had held.  Verrilli suggested that the Court may have chosen simply to deny Liberty’s petition last Term for reasons related to the ruling it did issue on the ACA.   In any event, Verrilli said, “under the circumstances of this case,” the government did not “oppose further proceedings in the court of appeals” to resolve the Anti-Injunction Act’s impact on the employer mandate challenge, and to resolve the religious freedom and equal protection claims.

The bottom line, according to Verrilli, is that the Court should decide whether to grant Liberty’s rehearing, grant technical review of the Liberty petition, and then vacate the Fourth Circuit’s earlier ruling and sent it back “for further consideration in light of” the June decision on the ACA.

The Court is expected to schedule this issue for consideration soon, perhaps at one of its Conferences early next month.

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Recommended Citation: Lyle Denniston, U.S.: New challenge to ACA OK (UPDATE), SCOTUSblog (Oct. 31, 2012, 5:29 PM), http://www.scotusblog.com/2012/10/u-s-new-challenge-to-aca-ok/