The Liberty University case also is unique in that it was the only one where the appeals court decided it couldn’t even make a ruling, given that the provisions it was supposed to rule on hadn’t come into effect. The Fourth Circuit Court of Appeals ruled that the Anti-Injunction Act precluded any rulings about the mandate’s constitutionality before the mandate actually took effect and individuals began paying penalties.
The Supreme Court sided against that viewpoint. In its decision, the justices said that it was within the court’s power to rule on the health law now. That leaves Liberty wanting some answers on the provisions it challenged in court. The Obama administration also agreed that these issues should go back to the Fourth Circuit. Other courts are already hearing new challenges to the health care law, too.
Liberty University doesn’t want to challenge the individual mandate; we already know what the Supreme Court thinks about that. But it does want are answers on two other provisions that it challenged: the mandate that employers provide insurance coverage and the requirement that contraceptives be covered. ”Petitioners’ remaining claims should be subject to adjudication by the lower courts,” Liberty University’s lawyers wrote in a July 2012 petition for re-hearing.
The ever-helpful Lyle Denniston at SCOTUSBlog, who has covered the Supreme Court for decades now, observes that this is a pretty rare move:
Ordinarily, the Court simply denies rehearing pleas with routine orders. The other side in such a situation is not even allowed to react to the rehearing petition unless the Court explicitly asks it to do so. The Court held onto the Liberty rehearing plea over the summer — a period during which it routinely denied a host of other rehearing petitions, without comment. The Justices took up the Liberty plea at their September 24 Conference, resulting in Monday’s order asking the Obama Administration to file a response — within thirty days – with advice on what the Court should do with the Liberty case. While not signaling what the ultimate disposition might be, that was a sufficient break from the normal practice that it carried at least potential significance.
It’s hard to know at this point what would happen if these two provisions of the health care law were overturned. Health policy experts don’t tend to consider the employer mandate as crucial to the health law’s success as the individual mandate. The vast majority of employers already provide insurance coverage, with no mandate at all. but if ACA results in unsustainable cost this could trigger a drop of coverage for millions of people.
If the mandate were to fall and employers were not to provide coverage, workers could potentially head to an insurance exchange and purchase coverage there, some with subsidies. Research suggests this coverage would end up costing employees more, but the option would still be there.