SCOTUS REINSTATES LIBERTY UNIV. v. GEITHNER

 

[Posted November 26, 2012] A few hours ago, the Supreme Court of the United States granted a petition for rehearing in Liberty University’s challenge to the Affordable Healthcare Act, simultaneously granting certiorari and remanding the case to the Fourth Circuit for reconsideration in light of last June’s decision in NFIB v. Sebelius, on the constitutionality of the AHCA.

 

Last year, a panel of the Fourth had rejected Liberty’s appeal based on the Anti-Injunction Act. The panel had held that the suit by the college was in effect an attempt to enjoin the collection of a future tax, so the Anti-Injunction Act forbade a court from entertaining the challenge. In NFIB, the Supreme Court held paradoxically that the individual mandate in the AHCA was not a tax for purposes of the Anti-Injunction Act, even as it was holding that the mandate was a tax for purposes of constitutionality. Having read the chief justice’s majority opinion, I can say that I at least understand his reasoning, even while it seems a tad shaky.

 

In any event, the justices have ruled against the government on the issue on which the government won in the Fourth last year, so technically this has to go back to the court of appeals to be considered again. I’m not convinced that this is more than a symbolic victory, because the government’s win on the merits in NFIB probably presages a similar outcome on remand. But who knows? Maybe the college’s lawyers can come up with an angle, perhaps based on the Free Exercise Clause, that will gain traction.

 

By the way, there is no similar succor for the appellant in Virginia v. Sebelius, the Commonwealth’s challenge to the AHCA that was decided in the Fourth on the same day as Liberty University. That appeal was decided on a wholly different basis – the inability of a state to sue to vindicate the interests of its citizens – and the justices long ago rejected certiorari. That one’s really-most-sincerely dead.