The losing parties in Virginia v. Sebelius and Liberty University v. Geithner will waste no time seeking Supreme Court review of the decisions. But the Fourth Circuit’s dismissals on jurisdictional grounds make it less likely that the Supreme Court would grant certiorari to use either of those cases as a vehicle for deciding whether the individual mandate is constitutional.
The Supreme Court could still grant review of either or both cases, but it would probably do so only if it viewed the jurisdictional questions as independently worthy of Supreme Court review.
The Anti-Injunction Act is a federal statute that prohibits pre-enforcement challenges to tax assessments. Its basic purpose is to prevent lawsuits from interfering with the collection of tax revenue. The statute does not bar all challenges to taxes, only pre-enforcement challenges. Also, because the prohibition of pre-enforcement challenges is a creature of statute, Congress could lift it and authorize pre-enforcement challenges to the individual mandate. If both Republicans and Democrats agree that the country is better off knowing sooner rather than later whether the individual mandate is constitutional, then Congress could enact and the President could sign legislation authorizing federal courts to decide pre-enforcement challenges. That legislation would take the Anti-Injunction Act off the table as a limitation.
If adopted by the Supreme Court, the Fourth Circuit’s Anti-Injunction Act reasoning in the Liberty University case would prevent judicial review of any challenges brought by individuals subject to the individual mandate, raising the possibility that the Supreme Court could find all of the challenges to the individual mandate outside of federal jurisdiction.
The States in Florida v. HHS have advanced standing arguments that do not depend on anti-mandate state laws (like the argument rejected by the Fourth Circuit in Virginia v. Sebelius). The Eleventh Circuit did not address those arguments because the panel concluded that the private plaintiffs have standing. Those arguments may receive some new attention now that there may be a statutory bar to jurisdiction over the private plaintiffs’ challenges. For my assessment of those arguments, see Section II.D of my draft law review essay, The Ghost that Slayed the Mandate, forthcoming in the Stanford Law Review.