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Don't Worry About Supremes' Refusal to Hear Liberty U's Challenge to Obamacare

Those claims will undoubtedly get a full airing. SCOTUSblog’s Lyle Denniston notes that, while Hobby Lobby focuses on the statutory RFRA claim against Obamacare, Conestoga Woods, the other case the Supreme Court has agreed to review (from the Third Circuit), raises constitutional issues under the First Amendment right to free exercise of religion, in addition to RFRA claims.

It is worth noting that the media reporting about the Liberty case has been misleading. It was covered as if it were a major Obamacare victory for the administration, an impression reinforced by the Supreme Court’s refusal to review the case (at a time when the president is groping for any semblance of good news about his “legacy” reform). In fact, as Jon Adler and Cato’s Michael Cannon explain, Liberty did significant damage to the administration’s legal position.

The Obama Justice Department essentially argued that the claimants should not be heard in court. Eric Holder’s minions posited that Liberty University lacked standing to challenge the employer mandate, and that challenges to the employer mandate were premature – both because President Obama has presumed to delay its enforcement for a year, and because the Anti-Injunction Act does not permit pre-enforcement challenges to taxes. (Hmmm, remember when the president used to insist Obamacare did not raise taxes?) The Fourth Circuit rejected all of those claims, and the Supreme Court’s refusal to review the case leaves that rejection in place.

It is true, of course, that the Fourth Circuit ruled against Liberty University on the merits. But that was virtually certain to happen on the individual mandate claim, which was not much different from the one the Supreme Court denied last year. It was, moreover, not at all surprising given the nature of the arguments on the employer mandate.

There is a much more serious challenge to Obamacare’s individual and employer mandate regime in the pipeline. As Oklahoma attorney general Scott Pruitt argued in a Wall Street Journal op-ed a few days ago, the IRS’s enforcement of the mandates in states that did not opt to create insurance “exchanges” blatantly violates the express terms of the Obamacare statute (the “Affordable” Care Act).

Consequently, those of us who oppose Obamacare should not be alarmed by the Supreme Court’s denial of review in Liberty. That case has already served its purpose by wounding the administration’s effort to bar challenges from being heard. Religious liberty concerns will be fully covered by the two abortifacient/contraceptive mandate cases the Court agreed to hear. And other weighty challenges to the individual/employer mandate regime are on the way.