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April 17, 2014

The Biggest Legal Challenges to Obamacare

The Wire outlines the biggest legal challenges to Obamacare:

Federal exchange states aren’t eligible for tax subsidies: Because the Affordable Care Act only specifically mentions subsidies for exchanges “established by the state,” the federal exchange can’t grant subsidies.

Tax laws should be introduced in the House, not the Senate: The argument was that Obamacare violated the Origination Clause of the Constitution, which says that bills for raising revenue have to originate in the House and basically piggy backs off the conservative talking point that Obamacare is a tax, not a law.

Contraceptives coverage defies religious freedom: The contraceptives mandate doesn’t make or break the law, but it’s a blow to women and women’s rights activists.

If religious employers are exempt, nonprofits like schools should be as well: The University of Notre Dame re-submitted a lawsuit over Obamacare that was originally rejected in January.

Obama might be “rewriting his own law”: Technically this isn’t a legal case, but the House Judiciary Committee will review those arguments, as well as the legal case against subsidies.

  • MrBeale

    Those are all terrible legal arguments. Going in order:

    1. Not a rational interpretation of the law.

    2. The bill DID originate in the House, so this point is moot.

    3. This argument makes a mockery of Employment Division v Smith, a case which was written by Justice Scalia and has been rigorously protected by the Court.

    4. This seems like a case which would get rational basis review, which thus almost certainly would fail.

    5. The executive has incredibly broad discretion in the enforcement of laws, and even if the court found these waivers to be unconstitutional, that would result in MORE enforcement of the law, and thus have zero effect on getting rid of it.

    If SCOTUS wanted to get rid of the law, it would have done so last year.

    • EricFromTheHill

      I think the bill as it is now is the Baucus/Senate version, no?

      • MrBeale

        Yes, which was an amendment to a House bill.

    • andrewp111

      Actually #1 is the only good argument. A rational interpretation of the law is that Congress intended to limit the subsidies to State-run exchanges as a means of giving States a very strong incentive to set up and run their own exchanges. I believe this view was reported at the time the legislation was still working its way through the Senate sausage machine, and it would be in line with the entire legislative history and theme of the law. Just because this provision didn’t work as intended is irrelevant to whether the legal challenge is valid.

      #2 is not valid because the Senate did a standard maneuver of taking an unrelated House bill, deleting the entire content, and using that House bill as a vehicle for the ACA. This is a standard operating procedure in the Senate.

      And #5 is moot because Obama is delaying provisions for only a year, and any court challenge would take at least that long to go anywhere. Obama does behave in a very lawless fashion, but if you notice carefully, he usually only does this when either no one has legal standing to challenge, or he is delaying administration for a short enough time to make a challenge impractical. The few times he hasn’t followed these rules he got his fingers burned. The most important one is the recess appointments case that the Supreme Court will soon be hearing.

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