Is President Barack Obama’s health care law headed back to the Supreme Court? Not now — but one of the law’s opponents could be trying to set up a path to allow the court to take up some unfinished business.
Liberty University is asking the Supreme Court to order a federal appeals court to hear the issues it has raised in its own lawsuit — issues it says weren’t resolved when the Supreme Court upheld the law this summer.
Specifically, Liberty wants the 4th Circuit Court of Appeals to hear its challenges that the health reform law’s employer requirements are unconstitutional and that the individual mandate violates their right to freedom of religion.
The Supreme Court on Monday asked the federal government to weigh in on whether to grant the request. The order on the court docket could indicate that some justices are interested enough in the new issues to take a look — but there’s no guarantee that they’ll actually do so after the Justice Department responds.
The request could be a sign that “some members of the court may have some interest” in these issues, said Carl Tobias, a law professor at the University of Richmond.
But he cautioned that not much has changed since the court ruled in June. “Whether that will lead to an order requiring rehearing in the 4th is not clear.”
But if the court does grant Liberty’s request, the 4th Circuit could take up the issues early next year, potentially setting up another trip to the Supreme Court for the health reform law in the future.
Liberty University, a conservative Christian school in Lynchburg, Va., was one of the first institutions to file a lawsuit against health reform. But its case was essentially put on hold as the 26 states’ suit was heard by the Supreme Court.
Liberty’s entire lawsuit — which challenges the individual mandate, employer requirements and whether the mandate violates the “free exercise clause” — was dismissed by the Supreme Court after it ruled in June that the individual mandate was constitutional.
But Liberty says that just because the court ruled on the mandate doesn’t mean that the other issues should have been tossed out, too.
The school wants the Supreme Court to order the 4th Circuit to hear the other issues, which say that the mandate violates the Constitution’s free exercise, establishment and equal protection clauses and that the employer requirements are unconstitutional.
“Whether [the individual mandate] collides with free exercise of religions as it applies to Liberty University, that’s a claim that’s alive and well,” said Mathew Staver, founder and chairman of Liberty Counsel, which represents Liberty University. “The employer mandate [also hasn’t been challenged yet].”
The Justice Department now has 30 days to respond to the Supreme Court.
Even if the 4th Circuit rehears the case, it’s not certain that Liberty would succeed.
The 4th Circuit is known as one of the most liberal in the country. The three-judge panel that heard the case in May 2011 was made up of three judges appointed by Democratic presidents. And while they ruled that they couldn’t decide on the mandate yet because of the Anti-Injunction Act, two of the three suggested in concurring opinions that they would have ruled for the Obama administration if they had reached the merits.
“Maybe Liberty is thinking, 'We get the 4th to rule against it and we’ll go back to the Supreme Court,’” Tobias said. “This is not about the 4th Circuit. It’s about getting back to the Supremes if they can.”