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Opponents of the Affordable Care Act have been concerned that their window for legal action is increasingly narrowing because, as the law becomes more entrenched, the more difficult it will be to convince courts to overturn it. So says Randy Barnett, a Georgetown University law professor who worked on the mostly unsuccessful challenge the Supreme Court ruled on this year.
“There’s no question that one of the reasons why we had as much room to run as we did is we had a two-year delay in implementing most of the law,” he said in an interview, referring to the multistate lawsuit he helped lead. Had more of the health law been up and running, “it would’ve been much more difficult for us to even make the challenge. … That opening is closing.”
The Supreme Court has given some more breathing room to Barnett and other foes of the law, however, by deciding Monday morning to return one of the still pending challenges to the law to the Fourth Circuit Court. In Liberty University v. Geithner, Jerry Falwell's Virginia Christian college is challenging the individual and large employer mandates in the law. Back in September 2011, the Fourth Circuit dismissed the case on jurisdictional grounds. The Supreme Court declined to hear Liberty's appeal with the cases it reviewed this year and declined to review Liberty's appeal. Liberty asked for a rehearing, and the Court has basically granted that, by sending it back to the appeals court.
As long as wingnuts draw breath (and do so on the Supreme Court) this apparently won't be over.
Originally posted to Joan McCarter on Mon Nov 26, 2012 at 08:24 AM PST.