Justices order Obamacare back to court

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Had President Obama lost the election, it would have been eliminated and replaced by new healthcare reform. But his win doesn’t assure that his signature legislation will survive intact.

For days, I’ve been hearing dizzying roundtable discussions with analysts focusing on different aspects of Obamacare and predicting the impact of the still unfolding law, especially as its component parts go into effect in 2013 and continue to roll out into 2014.

But then it got more immediate Monday, when the Supreme Court got involved. Again.

The Supreme Court has ordered a federal appeals court to take another look at whether a key requirement in the health care reform law violates religious freedoms.

A pending lawsuit from the private Liberty University had claimed, among other things, that the law would lead to taxpayer dollars funding abortions and contraception, a claim the Obama administration rejects. The justices issued their order Monday.

The high court in June had upheld the overall law championed by President Obama, but left room for continued legal challenges to certain aspects of the law’s application.

Justice Roberts was key to the individual mandate withstanding the constitutional challenge, to nearly everyone’s surprise at the time. But he left it in place by calling it what it was, a tax. And now that it is, and is about to be enforced, the door is open to rehear challenges to that tax – and penalty for not paying it – as a violation in itself.

So here we go again.

ObamaCare returns to federal appeals court to resume its battle against religious liberty, thanks to a Monday directive from the Supreme Court that revives the lawsuit brought by Liberty University, a Christian school in Virginia.  The Liberty suit has essentially been put on ice while the Supreme Court dealt with the constitutionality of ObamaCare’s individual mandate.  With that landmark 5-4 ruling behind us, and the entirely new concept of a shape-shifting “tax/penalty” added to Constitutional lore, it’s time for the courts to revisit some of the other places where the federal health-insurance takeover conflicts with our dwindling inventory of inalienable rights.

Liberty University’s suit ran afoul of the Anti-Injunction Act, which says that taxes cannot be legally challenged until they have been assessed.  The tax/penalty pulled some of its remarkable shape-changing tricks to get ObamaCare itself around the Anti-Injunction Act, while allowing the dishonest proponents of the law (prominently including President Obama) to claim that it wasn’t really a tax.  Those pretenses are no longer necessary, and the gigantic ObamaCare taxes are now being assessed, so Liberty University re-filed its suit, without objection from the Obama Administration.

It’s going to be very interesting following these court cases for all the charges being filed against this healthcare law.

But the main attraction will be the university’s First Amendment challenge to ObamaCare’s contraception mandates, which raise a very thorny issue.

(Several, actually.)

The law grants conscience waivers to explicitly religious institutions, such as houses of worship, but not to business enterprises run by devoutly religious people.  In other words, Congress is making laws respecting the establishment of religion and prohibiting the free exercise thereof, which the First Amendment says is a bad thing, even before it gets around to saying that abridging the freedom of speech is bad.

And freedom of speech violation is buried in the law and therefore some of these legal challenges as well. Former Speaker Nancy Pelosi famously said ‘we have to pass the bill to find out what’s in it.’ We’re still discovering, but you have to wonder how little they knew.

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