Why It’s Probably Not Time To Freak Out About The Supreme Court Getting Back Into The Health Care Business

Earlier this morning, the Supreme Court asked for the Solicitor General to respond to a conservative university’s petition seeking to reactivate a challenge to the Affordable Care Act. Normally when the Court calls for such a response it means they are taking the petition very seriously. As SCOTUSBlog explains, the petition tries to breathe new life into a claim that the law’s insurance coverage requirements violate religious liberty, a claim that has not been taken seriously by lower courts:

The Supreme Court opened its new Term on Monday by asking the federal government to offer its views on whether the way should be cleared for new constitutional challenges to the federal health care law — including a new protest against the individual mandate that the Court had upheld last June. The request for the government’s views came in response to a rehearing request by a religious-oriented institution, Liberty University in Lynchburg, Va. The university’s earlier petition was simply denied in June, so it asked the Court to reconsider and wipe out a lower court ruling in order to revive the university’s religious challenges to both the individual mandate and the separate insurance coverage mandate for employers. There is also another challenge to the employer mandate, which did not figure in the Court’s decision last Term.

It is, of course, always dangerous to make predictions about the Supreme Court, especially where Obamacare is involved. Had the justices followed their own past opinions last term, there would have been at least seven votes to uphold the Affordable Care Act as a valid exercise of Congress’ power to regulate the national economy. Nevertheless, it is likely that today’s order is merely procedural housecleaning — not a sign that the justices want to pick up this contentious statute again any time soon.

The petition facing the justices concerns Liberty University v. Geithner, which is the only case where a court of appeals dismissed a challenge to the Affordable Care Act because they believed the case was premature under something called the Tax Anti-Injunction Act. Last June, of course, the Supreme Court disagreed with the Fourth Circuit on this point.


Because the Fourth Circuit kicked Liberty University on procedural grounds, it never actually reached the merits of the plaintiffs’ claims in that case. Broadly speaking, there were two. First, the plaintiffs claimed that the Affordable Care Act exceeds Congress’ enumerated powers — that was the argument that the Supreme Court rejected last June. Additionally, they also claimed that the law violates religious liberty. Neither the Supreme Court nor the court of appeals has weighed in on this second assertion.

There is absolutely no reason to believe that Liberty University should ultimately win its religious freedom claim. Nevertheless, the proper procedure when a case pending before the Supreme Court presents a live issue that was not considered by the court of appeals is to let the court of appeals weigh in on that issue before the Supreme Court does anything else with it. The most likely explanation for today’s order is that the justices intend to set this housekeeping process in motion, not that they are considering striking down Obamacare on religious freedom grounds.