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View Diary: Supreme Court clears way for yet another Obamacare case (48 comments)

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  •  Can you expand on this? (6+ / 0-)

    I'm not sure I follow.

    Vacating the 4th Circuit decision makes sense, but basically the analysis is the same as in Sebelius and ACA is affirmed under taxing power.

    Not sure where the religious freedom argument goes, UNLESS, the contraception thing is in the Liberty case. I did not remember that.  

    I'm not seeing what you are seeing here Gary.

    •  The Liberty case was decided by the 4th Circuit (4+ / 0-)

      on the basis of the anti-injunction act. The SC decision on the ACA in NFIB v Sebelius, held, among other things, that the ACA was not a tax for purposes of the Anti-Injunction Act. The Supreme Court has now vacated the Fourth Circuit decision in light of Sebelius, which means that the underlying argument, that the law violates the First Amendment free expression clause, is still to be decided. That freedom of expression argument was not raised in the Sebelius case decided by the SC, and is therefore left to be decided by the Fourth Circuit, for now.

      Further, affiant sayeth not.

      by Gary Norton on Mon Nov 26, 2012 at 10:51:39 AM PST

      [ Parent ]

      •  Ignore what I wrote above. I suffered a brain (1+ / 0-)
        Recommended by:
        CoExistNow

        cramp and am going back to re-read the Liberty decision. You are correct. The contraception issue was not argued, near as I can tell, so free exercise doesn't present itself. The apportionment clause issue is raised, but I'm going to do all my homework first. Sorry about my goof.

        Further, affiant sayeth not.

        by Gary Norton on Mon Nov 26, 2012 at 11:04:13 AM PST

        [ Parent ]

    •  A description of what Liberty asserts is (2+ / 0-)
      Recommended by:
      Rolfyboy6, Gary Norton

      found at robert wood johnson foundation web site covering health care reform legal challenges.

      It would seem they claim challenges based on matters not explicitly covered under the Sebelius case on which SCOTUS ruled this year.

      The Liberty petitioners recently filed a petition for rehearing of their earlier petition for certiorari, asserting that the Supreme Court should have granted the first petition, vacated the Fourth Circuit decision, and remanded the case to hear claims that were not considered in NFIB v. Sebelius. Specifically, petitioners argue that the Fourth Circuit did not reach the merits of claims not addressed by the Supreme Court in NFIB v. Sebelius, and that the previous Fourth Circuit decision was overturned by the NFIB holding that the AIA did not bar courts from hearing a pre-enforcement challenge to the ACA’s individual mandate. In support of their argument, the petitioners cite Supreme Court precedent, asserting that the Court has agreed to a rehearing of a petition for writ of certiorari when there are “intervening circumstances of a substantial or controlling effect,” and that under 28 U.S.C §2106 — the statute governing Court rules — the Court may modify any judgment brought before it, and vacate and remand the case to a lower court.

      Petitioners characterize the NFIB decision as a significant intervening change that will be outcome-determinative and that the lower courts should hear their remaining claims on the merits. As a result, the petitioners argue that they have unresolved challenges to the employer penalty (including the religious exceptions to the requirement to provide coverage) and to the individual penalty under the First Amendment Free Exercise Clause, the Establishment Clause and the Equal Protection Clause of the U.S. Constitution. Petitioners go on to argue that they are entitled to rehearing because without it, they would arguably be forever barred from having their remaining claims heard.[4]

      That same piece then outlines the outstanding issues in Liberty's case and the District Court's holding.
    •  Armando. You are right. I reread the 4th Cir. (1+ / 0-)
      Recommended by:
      Rolfyboy6

      opinion and there was no First Amendment claim mentioned. My bad.

      I'm confused as to why others, including Scotusblog continue to reference that possibility. The only difference I see between Liberty's claims and the Sebelius decision is on the employer as opposed to individual mandate and the "apportionment" argument.

      Further, affiant sayeth not.

      by Gary Norton on Mon Nov 26, 2012 at 11:58:30 AM PST

      [ Parent ]

    •  Well, as it turns out Liberty did raise free (1+ / 0-)
      Recommended by:
      Rolfyboy6

      exercise and Establishment clause arguments in its pleadings that were addressed at length by the District Court. While one of that is discussed in the 4th Circuit opinion, very surprisingly, it all may resurface along with the employer mandate arguments.

      Further, affiant sayeth not.

      by Gary Norton on Mon Nov 26, 2012 at 01:07:58 PM PST

      [ Parent ]

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