On Monday, the U.S. Supreme Court, in granting a petition for rehearing in Liberty University v. Geitner, vacated the U.S. Fourth Circuit’s prior dismissal of Liberty’s challenge to Obamacare and directed the Fourth Circuit to reconsider its decision in light of the Supreme Court’s recent decision in NFIB v. Sebelius (2012).
The Fourth Circuit had dismissed Liberty’s lawsuit as not ripe for adjudication pursuant to the Anti-Injunction Act, which provides that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed.”
In essence, the Fourth Circuit held that Liberty’s challenge was premature because the tax in question had not taken effect and that Liberty could not assert its claims until that happened. The Supreme Court rejected this rationale in NFIB, holding that the individual mandate was not a tax for purposes of the Anti-Injunction Act (contrary to what the Fourth Circuit had held) but that it could be considered a tax for purposes of determining whether Congress’s power had properly exercised its authority under the Taxing Clause of Article 1, Section 8, of the Constitution.
Having rejected the Fourth Circuit’s reason for not ruling on the merits, the Supreme Court remanded the case back to the Fourth Circuit so that it could take whatever action is appropriate in light of the NFIB decision. This is something that the Supreme Court does routinely whenever it issues a decision that could affect the analysis of a previously issued lower court decision, and this action should not be taken as a sign that the Supreme Court is reconsidering the merits of the claims it addressed in NFIB.
Thus, on Liberty’s claims that were like those heard last spring, the Fourth Circuit would be bound by the Supreme Court’s decision to dismiss them on the merits. However, Liberty brought other claims that have not yet been heard by the Supreme Court, including that the individual mandate and the employer mandate violate the Free Exercise Clause of the First Amendment and the Religious Freedom Restoration Act. Others are also challenging the Department of Health and Human Services’ anti-conscience mandate in dozens of lawsuits that are now pending in courts throughout the country, the merits of which were addressed in a prior Heritage Legal Memorandum.
These claims that the Supreme Court has not yet addressed are alive and well. Furthermore, the lower courts do not have to wait for the tax to take effect before considering the merits of those challenges.
These issues will ultimately wend their way through the courts back up to the Supreme Court for its consideration.