- The Washington Times
Monday, October 10, 2011

Liberty University has asked the Supreme Court to hear its case against President Obama’s new health care law, after an appeals court ruled the university’s challenge premature.

Invoking the Anti-Injunction Act that bars lawsuits seeking to block collection of a tax, the U.S. Court of Appeals for the 4th Circuit in Richmond said the so-called “individual mandate” provision of the law requiring Americans to purchase health insurance or face a penalty was effectively a tax and thus cannot be challenged prior to its effective date of January 2014.

The case of Liberty, the Lynchburg, Va.-based Christian school founded by Jerry Falwell, challenged two mandates in the law that require individuals to buy health insurance and employers to offer it.

“The employer mandate and the Anti-Injunction Act is unique to Liberty University, and those two things need to be addressed,” said Mathew Staver, dean of Liberty University’s School of Law. He called the law, passed in 2010, “an unprecedented expansion of the federal government’s power to micromanage personal choices.”

The petition states: “Petitioners are not challenging the assessment or collection of the non-compliance penalties, which might never be assessed against them and, if they were, would not be assessed before April 15 2015. It is the mandates and, more particularly, Congress’ authority to enact such mandates that is at the heart of this case.”

The Obama administration — citing an 11th Circuit Court of Appeals ruling out of Atlanta striking down the act’s individual mandate — announced last month it also would appeal directly to the Supreme Court, which is expected to take up the case during its 2011-12 term.

Florida and 25 other states, along with the National Federation of Independent Business, have asked the country’s highest court to rule the entire law unconstitutional.

In addition to tossing Liberty’s case, the 4th Circuit panel also dismissed Virginia Attorney General Kenneth T. Cuccinelli II’s challenge to the law on the grounds that the state lacked standing to sue. Mr. Cuccinelli, a Republican, has also appealed to the high court.

In contrast to other recent court rulings, the three-judge panel in the 4th Circuit in Richmond didn’t rule on the merits of the law. They instead took issue with the standing of the cases brought forth by Mr. Cuccinelli and Liberty University.

Mr. Cuccinelli, in addition to arguing against the individual mandate, has stressed that he is defending a state law passed in 2010 that states no Virginia resident can be required to purchase health insurance.

But the panel ruled Virginia lacked standing because the mandate applies only to individuals, not the state as a whole.

A Justice Department spokeswoman could not be reached for comment Monday.

Though both sides agree that the Supreme Court will take up the case, the question is how many of the more than 30 lawsuits filed challenging the law the justices will agree to hear.

The 6th Circuit Court of Appeals in Cincinnati upheld the law in June, and that case has also been appealed to the Supreme Court.

Randy Barnett, an attorney representing the National Federation of Independent Business, said the Florida case also involves the issue of whether the mandate can be severed from the law without invalidating it entirely. It also challenges the notion that the expansion of Medicaid requirements constitutes an encroachment on the states.

“It all adds up to the odds that the Florida case will be the one to go,” he said.

But Mr. Staver argued that Liberty’s case addresses the anti-injunction issue and the employer mandate, making it ripe for a hearing. He thought the court would grant more than one of the petitions and hold back-to-back oral arguments.

• David Sherfinski can be reached at dsherfinski@washingtontimes.com.

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