Legal Challenge to Obamacare Still Alive

By Pete Winn | October 10, 2012 | 7:03 PM EDT

Liberty University campus. (Photo: Liberty University)

( - In a surprise move, the U.S. Supreme Court has given the Obama Justice Department just 30 days to answer why the Court shouldn’t approve a request filed by Liberty Counsel to re-hear its challenge to Obamacare.

Mathew Staver, president of the Orlando-based Liberty Counsel law firm, said the Supreme Court's decision in June upholding the constitutionality of Obamacare did not actually put an end to his legal efforts to stop the health-care tax law.

Back in June, Staver said, the justices actually sided with him in arguments he made to permit legal challenges to proceed against the Patient Protection and Affordable Care Act.

“We have petitioned the U.S. Supreme Court to reconsider our case because we actually prevailed on the issue we petitioned the Court on, namely the Anti-Injunction Act,” Staver said.

But the Court left untouched the main issues upon which Liberty Counsel had based its challenge to the law – issues that Chief Justice John Roberts did not even consider when he arrived at his decision upholding Obamacare.

“We’ve asked the Supreme Court to send our case back down to the court of appeals so it can actually address the challenge we made to the Employer Mandate – which has never been ruled on – and the Free Exercise of Religion challenge, which has never been ruled on either – both of which were part of our case,” he told

Liberty Univ. v. Geithner

In 2010, on the same day the bill was signed into law, Staver filed suit challenging the Patient Protection and Affordable Care Act on behalf of the late Rev. Jerry Falwell’s Liberty University – alongside lawsuits filed by 26 states and several other individuals.

The Liberty Counsel lawsuit challenged the law’s mandate requiring individuals to purchase insurance (Section 1501) and the mandate that employers purchase insurance for employees (Section 1513) or face huge penalties. It also argued that the act violated the free exercise of religion.

“We argued that among other things that Congress lacked the authority to pass the employer mandate, and even if they had the authority, it collides with the free exercise of religion, both under the individual mandate and the employer mandate, because of the forced funding of abortion that applies to both,” Staver said.

In addition, the Liberty case also argued that the law offers some groups a religious exemption from participation, while refusing an exemption for other religious groups – constituting an unconstitutional “entanglement” of government and religion.

When  the lower court ruled against the Liberty Counsel case, Staver appealed the decision to the Fourth Circuit Court of Appeals.

In September of 2011, a federal appeals court panel in Richmond, Va., ruled that Obamacare constituted a tax and the court was barred from considering the lawsuit by the Anti-Injunction Act, an 1867 law designed to stop federal courts from preventing the federal government from collecting taxes.

“The court of appeals refused to even consider the merits of the issue, but instead said that it didn’t have jurisdiction because the Anti-Injunction Act prohibited it from reaching the merits until a tax is paid and refund sought – which would be sometime after 2014,” Staver said.

So Liberty Counsel appealed directly to the U.S. Supreme Court and asked the justices to rule that the Anti-Injunction Act did not apply.

In March of 2012, when the Supreme Court held oral arguments on Obamacare, the justices took up Staver’s challenge.

“The Supreme Court, if you remember, dedicated the first day of oral argument to our issue – coming out of the Liberty University v. Geithner case on the Anti-Injunction Act,” Staver said.

He added: “When the Court ultimately issued its ruling at the end of June, it ruled that the Anti-Injunction Act does not bar the courts from reaching the merits, and the Court ultimately did reach (a decision on) the merits, at least on the individual mandate.”

But Staver said the two main issues in his original lawsuit were left untouched by the Supreme Court -– the mandate on employers to provide health insurance and the law’s requirement that insurance cover abortion.

“I believe what the Court will do is ultimately send the case back to the Court of Appeals, allow us to address the merits of the employer mandate and the Free Exercise challenge, and then we’re back on a fast-track to the United States Supreme Court,” he told

The Justice Department has not commented on the order.