U.S. Solicitor General Donald B. Verrilli, Jr. has decided not to challenge Liberty University of Lynchburg, Virginia’s petition to have the Fourth Circuit review its case contesting the legality of the Affordable Care Act (ACA). Among other arguments, Liberty University has claimed that the individual and employer pay-or-play mandates exceed Congress’s powers, and that the law violates the religious freedom provisions of the First Amendment, and the Equal Protection portion of the Fifth Amendment’s due process clause. The Supreme Court had denied Liberty’s petition for Supreme Court review after issuing its landmark decision – National Federation of Independent Business v. Sebelius (NFIB) – in which it upheld the constitutionality of the individual mandate on the grounds that the penalty for refusing to purchase insurance constitutes a tax that Congress can legitimately impose under its taxing power.

The Fourth Circuit initially dismissed the university’s case last year on technical grounds. Specifically, the appellate court found that the federal Anti-Injunction Act (AIA) – which prevents challenges to tax penalties before such penalties are actually imposed – barred the lawsuit, as the pay-or-play provisions will not take effect until 2014. The Supreme Court decided otherwise in NFIB, finding instead that the AIA did not act as a bar to further Court consideration of the individual mandate.

Liberty University, therefore, petitioned the Court to reconsider, and to vacate and remand the Fourth Circuit’s rejection of its lawsuit to allow the appellate court to evaluate the case on its merits. In its response, (pdf) the government stated that while it believes Liberty University’s claims lack merit, “under the circumstances of this case, respondents do not oppose further proceedings in the court of appeals to resolve them, including under the Anti-Injunction Act with respect to petitioners’ challenge to the employer responsibility provision.”

The Supreme Court did not specifically address the constitutionality of the employer mandate in its June decision, nor did it evaluate the merits of the religious freedom and Equal Protection claims. If the Court agrees to remand the case to the lower court, the viability of the ACA could once again be judicially tested.