Liberty University v. Lew

On Thursday, the U.S. Court of Appeals for the Fourth Circuit decided Liberty University v. Lew on remand from the Supreme Court after NFIB v. Sebelius. The headline is that the panel unanimously rejected Liberty University’s constitutional and statutory challenges to the individual and employer mandates. The court did not find Liberty University’s Commerce Clause challenge to the employer mandate particularly compelling, nor was it moved by Liberty University’s religious freedom arguments. Neither is a surprise. Lyle Denniston has more on the decision here.  [Note: this case involved challenges to the individual and employer mandates, but not to the contraception mandate, which is a distinct legal obligation.]

The interesting and more significant aspects of the Liberty University decision, overlooked by many commentators, involve how the Fourth Circuit handled some preliminary jurisdictional questions. The federal government had argued that Liberty University lacked standing to challenge the yet-to-be-imposed employer mandate and, in the alternative, that the Anti-Injunction Act barred a pre-enforcement challenge to the mandate’s penalty. The Fourth Circuit rejected both of these claims, in addition to the federal government’s argument that the recent decision to delay enforcement of the employer mandate justified putting off legal challenges. This is significant because the federal government has made similar arguments before federal district courts in Oklahoma and the District of Columbia seeking to have challenges to the IRS’ illegal tax credit rule dismissed. According to the Fourth Circuit, these jurisdictional arguments are without merit.

Michael Cannon has more here.