Timothy Geithner (AP Photo/Manuel Balce Ceneta)

The U.S. Supreme Court is raising the possibility that it still could knock out an important part of the Patient Protection and Affordable Care Act of 2010 (PPACA).

The court has brought a suit challenging PPACA, Liberty University et al. vs. Geithner (11-438), back to life and asked a lower court, the 4th U.S. Circuit Court of Appeals, to take another look at the case.

The court has told the 4th Circuit to review Liberty University vs. Geithner in light of the decision the court issued in response to National Federation of Independent Business (NFIB) vs. Sebelius (11-393).

One PPACA provision calls for many individuals to own a minimum level of health coverage or else pay a tax, and another provision, the “employer shared responsibility” provision, requires many employers to provide health coverage or else pay a tax.

Liberty University, a Virginia university affiliated with the Southern Baptist Conservatives of Virginia, sued U.S. Treasury Secretary Timothy Geithner to object to the PPACA individual and employer coverage mandates. 

The Supreme Court ruled in June in the NFIB decision that Congress did have the authority under the Commerce Clause of the U.S. Constitution to impose a tax on individuals who fail to own a minimum level of coverage. The court also found that the federal courts did have the legal authority to review challenges to PPACA, even though the federal Anti-Injunction Act normally keeps the federal courts from considering challenges to new taxes until the taxes have taken effect.

The Supreme Court did not consider a challenge to the employer coverage mandate at that time.

One PPACA provision would have taken some federal Medicaid funding away from states that failed to maintain pre-PPACA levels of “Medicaid funding effort.”

The Supreme Court killed the Medicaid expansion provision. The court said Congress could use promises of new funding to reward states for helping to implement PPACA, but the court said Congress could not force states to help implement PPACA by taking away existing federal funding.

The drafters of PPACA failed to include a “savings clause,” or a provision that would keep the rest of PPACA in force even if the courts found one portion of PPACA to be unconstitutional. Some PPACA critics had hoped that the Supreme Court would find that a ruling that killed any portion of PPACA would kill the entire act.

When the Supreme Court killed the PPACA Medicaid expansion provision, it let the rest of PPACA stay in force, despite the lack of a savings clause.

The 4th Circuit refused to consider the merits of Liberty University’s arguments. The court ruled that, because of the effects of the Anti-Injunction Act, it had to wait until PPACA took effect before it could consider attacks on the individual and employer mandate provisions.

In June, the Supreme Court issued an order denying Liberty University’s request for review. The Supreme Court now has thrown out that order along with the original 4th Circuit ruling.

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