Monday, October 10, 2011

Cert petition filed in Liberty University v. Geithner

The plaintiffs in Liberty University v. Geithner have filed a petition for a writ of certiorari at the Supreme Court. This is now the sixth ACA-related cert petition currently pending at the Court.

The petition presents three questions for review:
1. Whether the Anti-Injunction Act (AIA) bars courts from deciding the limits of federal power to enact a novel and  unprecedented law that forces individuals into the stream of commerce and coerces employers to reorder their business to enter into a government mandated and heavily regulated health insurance program when the challenged mandates are penalties, not taxes, where the government argues Congress never intended the AIA to apply, and where the Petitioners are currently being forced to comply with various parts of  the law and  thus  have no other alternative remedy but the present action.  
2. Whether Congress exceeded its enumerated powers by enacting a novel and unprecedented  law that forces individuals who otherwise are not market  participants to enter the stream of commerce and purchase a comprehensive but vaguely defined and burdensome health insurance product, and if so, to what extent can this essential part of the statutory scheme be severed.  
3. Whether Congress exceeded its enumerated powers by enacting a novel and unprecedented law that forces private employers into the health insurance market and requires them to enter into third-party contracts to provide a comprehensive but a vaguely defined  health insurance product to their employees and extended beneficiaries, and if so, to what extent can this essential part of the statutory scheme be severed. 
The first question is certworthy in its own right, as the United States noted in its cert petition in HHS v. Florida: there is now a 2-1 circuit split on whether the AIA bars federal courts from entertaining any pre-enforcement challenges to the minimum coverage provision. Question 2 is already presented in the other petitions, and is plainly certworthy for all the reasons we have discussed. Question 3 (involving the employer mandate, as applied to private employers) is not raised in any of the other petitions, and probably is not certworthy, at least according to the Court's traditional criteria (as spelled out in Rule 10).

The Court does not need to grant a separate cert petition to address the AIA issue (a question that is not formally presented in the other petitions). But doing so might be the simplest procedural mechanism for doing so. The justices could arrange for this case to be argued first (probably on the same day as the Florida case), and thus ensure they leave themselves ample time for a full airing of the jurisdictional issues.

You can access Liberty University's cert petition here.