Yesterday, Judge Norman K. Moon (W.D. Va.) granted the
’s motion to dismiss in Liberty University v. Geithner. Here is a brief summary of the decision’s essential points: United States
* Liberty University and two individual plaintiffs have standing to challenge the ACA because they currently need to make financial arrangements to comply with the requirements that the Act imposes on employers to provide minimally adequate coverage to their employees (in the case of Liberty) and on individuals to obtain such coverage (in the case of the two individuals).
* Their claims are ripe for essentially the same reason.
* The exactions imposed on employers for failing to provide employees with minimally adequate coverage, and on individuals for failing to obtain the same, are “regulatory penalties”—and not “taxes”—at least for purposes of the Ant-Injunction Act. Thus, the Ant-Injunction Act does not deprive the court of jurisdiction to hear the plaintiffs’ suit.
* The “conduct regulated by the individual coverage provision—individuals’ decisions to
forego purchasing health insurance coverage—is economic in nature.” (Op. at 27) It is not “passive inactivity,” as plaintiffs assert. Rather, it amounts to an economic decision as to how to finance health care they will inevitably consume. As a result, §1501(b) regulates activity that is “economic or commercial in nature,” and its aggregate effects have a substantial impact on interstate commerce. Congress can thus regulate this conduct under a straightforward application of the Lopez framework.
* Furthermore, §1501(b) is a valid exercise of the commerce power because “it is rational to believe the failure to regulate the uninsured would undercut the Act’s larger regulatory scheme for the interstate health care market.” (Op. at 29) Thus, even if the decision whether to purchase health insurance is not directly an “economic or commercial activity,” Congress can regulate that decision because doing so is essential to the effectiveness of the ACA’s broader regulatory scheme, which scheme plainly regulates interstate commerce (namely, the commercial market for health insurance).
* It is well established that the Commerce Clause permits Congress to regulate the terms of compensation employers pay their employees, including compensation in the form of health benefits. Thus, the employer requirements easily fall within the commerce power.
* The ACA is consistent with the Tenth Amendment, as it falls within Congress’s enumerated powers, and the plaintiffs have failed to point to any provisions that “commandeer” the states into action.
* The religious conscience exemption of §1501(d)(2)—which excepts from the minimum coverage requirement any individual who “is a member of a recognized religious sect or division thereof described in section [26 U.S.C. §]1402(g)(1) and an adherent of established tenets or teachings of such sect or division as described in such section”—does not violate the Establishment Clause because it “falls well within the bounds for permissible religious accommodation.” (Op. at. 37) It relieves what would otherwise be a burden on the free exercise of religion, and it does not distinguish among bona fide faiths “in any relevant sense.” (Op. at 38) Moreover, it does not create an excessive entanglement of the government in religion, nor does it lack a secular governmental purpose.
* The health care sharing ministries exemption from the minimum coverage requirement of §1501(b) is consistent with the Establishment Clause for essentially the same reasons.
* The ACA does not violate either the Free Exercise Clause or the Religious Freedom Restoration Act. The plaintiffs claimed that the Act did so by requiring them to facilitate, subsidize, fund, and support the provision of abortions. The Act’s religious exemptions are neutral on their face, and there is no indication that the Act will burden the plaintiffs’ practice of religion. Specifically, the plaintiffs “fail to allege how any payments required under the Act, whether fines, fees, taxes, or the cost of the policy, would be used to fund abortion. Indeed, the Act contains strict safeguards at multiple levels to prevent federal funds from being used to pay for abortion services beyond those in cases of rape or incest, or where the life of the woman would be endangered.” (Op. at 43)
* The religious exemptions provided in §1501 (spelled out above) do not violate the constitutional principles of equal protection (reversely incorporated to apply to the federal government via the Due Process Clause of the Fifth Amendment). Neither exemption discriminates on the basis of a suspect classification, and both are rationally related to a legitimate governmental interest—namely, the accommodation of the free exercise of religion.
* The plaintiffs’ freedom of association claim—that the ACA forces them, through the purchase of health insurance, to associate with those who support abortion—is really no different than their Free Exercise Clause claim, and fails to state a plausible claim for the same reasons.
* The plaintiffs’ free speech claim—that their compelled payments for health coverage would amount to speech, and that speech would support abortion—fails on the factual ground noted above, that they have made no plausible contention that their payments would be used to fund abortion.
* Because the minimum coverage provision constitutes a valid exercise of Congress’s commerce power, and need not be justified as a tax, it does not amount to an unapportioned “direct tax” in violation of Article I, §§ 2 and 9.
* The plaintiffs’ last claim is that the ACA violates the constitutional requirement that the “United States shall guarantee to every State in this
Union a Republican From of Government.” Art. IV, §4. Specifically, the plaintiffs argue that the ACA “grants to Congress the ability to ‘veto’ the private choices about health care made by individuals, employers, and states, giving the federal government ‘absolute sovereignty’ and ‘censorial power’ over the people.” The ACA “does no such thing; nothing prevents the people and their representatives from amending or repealing the Act through the democratic process.” (Op. at 53)