A Look At The Remaining Legal Challenges To Obamacare

There are still legal challenges to the Affordable Care Act pending after King v. Burwell, but they aren't quite as substantial as what we've seen over the last five years.


Somewhat, but not unexpectedly, lost in the media coverage over the Supreme Court’s decision in the marriage cases last week has been the aftermath of the decision it released the day before in which it rejected a claim that the subsidies provided by the law were only available to people who purchase insurance on exchanges established by the individual states. In the run up to that decision, there was much attention placed on the issue of what would happen if the court ruled in favor of the Plaintiffs and thus cut off potentially as many as eight million policyholders from the subsidies that many of them need in order to afford insurance. Polling in the months while the case was pending indicated that the vast majority of Americans wanted Congress to act in some way to deal with the issue if this happened, and many Republicans on Capitol Hill were quietly working behind the scenes to do just that even as President Obama attempted to use the issue to his advantage. With the Court’s decision, of course, all of that is unnecessary. Subsidies will continue to be available to everyone who purchases insurance on an exchange regardless of where they purchased their policy, and because of the way the Court decided the case it would be impossible for a future Republican Administration to reinterpret the law to deny subsidies to those on the Federal Exchange.

All of this leads to the question of where the battles over Obamacare go from here. As I noted on Thursday, the Court’s decision effectively means that the important legal battles over the law are over. In the past three years, the Court has upheld the Constitutionality of the act itself in what was one of the most hardly fought Commerce Clause cases in decades, it has ruled against the Administration on the rather narrow issue of the birth control mandate, and it has now upheld the Administration’s interpretation of legislative language regarding subsidies. Of those three, only the first and last were cases that posted an existential threat to the law itself. If the Administration had lost either, then the law likely would have been fatally damaged to the point where even the provisions that survived would have likely collapsed. The second lawsuit, exemplified by the Hobby Lobby case, was certainly an important case but did not really pose a threat to the law as a whole. The same is true of some remaining lawsuits by religious institutions that continue to fight the contraceptive coverage mandate on grounds that are somewhat but not entirely similar to Hobby Lobby.

That doesn’t mean that the legal battles over Obamacare are necessarily over. There are two separate cases in particular still making their way through the Court system that will be keeping Judges, Justice Department lawyers, and Plaintiff’s counsel busy for some years to come. Of these the more prominent is the one that was filed by the House of Representatives back in November. As originally conceived, that lawsuit had been intended to rely on the rather dubious legal arguments against the Administration’s decision to extend the compliance deadlines for employers who provide health insurance. That ground is still part of the underlying lawsuit. The far more serious counts deal with the allegation that the Administration has allocated funds toward some forms of subsidies without Congressional authorization. The second ground wouldn’t necessarily have the same impact as a victory by the Plaintiff’s in King v. Burwell would have had, but it’s certainly something that could cause headaches going forward. Right now, though, that law is still in its very early stages with the District Judge to whom it has been assigned dealing with the complicated issues of whether the House of Representatives even has the legal authority to file the lawsuit. Given that, it could be years before a Court rules on the merits of that argument. Additionally, it should be noted that if the House did succeed in its claims related to the subsidies, it would be presented with much the same issue that it would have faced had the Plaintiff prevailed in King v. Burwell, namely the question of what Congress should do to make up for the fact that the subsidies are no longer available. One would expect that such an eventuality would cause similar political headaches on Capitol Hill.

The second group of cases deals with an esoteric Constitutional issue regarding where bills that raise revenue must originate.  At the root of this case is a provision of the Constitution called the Origination Clause, sometimes also the Revenue Clause, which is set forth in Article I, Section 7, Clause one, which provides that “[a]ll Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.” In other words, all bills that raise taxes must originate in the House of Representatives and, if they don’t, they are null and void, although as we’ll see below there are several exceptions to that general rule. The Plaintiffs in the two cases raising these arguments have both largely met with failure, but the lawsuits still remain pending and it’s possible that someone will raise a similar argument in other courts elsewhere in the country. As I stated when I discussed these cases last year, the arguments raised here don’t seem to be very promising at all and, while the cases may still continue to cause the Administration headaches, it seems unlikely that these Origination Clause cases will end up being the kind of serious threats like the cases the Supreme Court have already decided.

The final point, of course, is that it remains unclear just how many of these remaining challenges to the PPACA will actually make their way to the nation’s highest court. Outside of limited exceptions set forth in Article III of the Constitution, the Supreme Court is not required to accept any case sent to it for review. Most especially with its opinion in King v. Burwell, the Supreme Court seems to be sending a signal that it is not interested being asked on a continual basis to undo a law that passed Congress and which has been in effect for the past five years. It’s entirely possible that the Justices may just decide in the future not to accept review of these cases. This would seem to be especially likely if the courts below have all upheld the law against the challenges against it, although even in those cases the Supreme Court often accepts challenges to Federal law because of the issues involved. In any case, though, even if the Court accepts these potential future appeals the manner in which it has dealt with the PPACA to date suggests strongly that those seeking to use the Courts to undue this Affordable Care Act will once again find themselves disappointed.

FILED UNDER: Congress, Health Care, Law and the Courts, US Politics, , , , , , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. HarvardLaw92 says:

    Dear Republicans,

    We’re not going to repeal PPACA for you. Stop asking.

    Your pals,


  2. Onward Christian Soldiers says:

    @HarvardLaw92: That’s what Roger Taney said in 1857. He said it was settled law that Dred Scott was property with no human rights.

    Don’t bother trying to overturn it.

    If King-Burwell went the other way (or the homosexual case for that matter), libs wouldn’t stop fighting.

    They wouldn’t say oh well, we lost. They’d continue to fight.

    Conservatives should continue their fight against Obamacare (or should I say SCOTUS care) and the bastardization of marriage.

    Dred Scott is no longer the law of the land. It was overturned via the political process.

    Normal marriage was the law of the land for 6,000 years but libs didn’t accept that – they fought it. Perverted marriage has been the law of the land for a few days – there is no reason conservatives shouldn’t continue to fight it. If nothing else this is a GREAT campaign issue for the 2016 candidates. Most of America does not support this (that’s why we vote against it almost every time it is on the ballot).

  3. HarvardLaw92 says:

    @Onward Christian Soldiers:

    Seek joy elsewhere, James.

  4. Gustopher says:

    The final point, of course, is that it remains unclear just how many of these remaining challenges to the PPACA will actually make their way to the nation’s highest court. Outside of limited exceptions set forth in Article III of the Constitution, the Supreme Court is not required to accept any case sent to it for review.

    Is the next President obligated to defend the validity of the law? I recall there being a big outrage on the right when the Obama administration chose not to defend DOMA.

    How much mischief could a Republican administration do to damage the law before cases get to the Supreme Court?

  5. C. Clavin says:

    @Onward Christian Soldiers:

    Normal marriage was the law of the land for 6,000 years

    Total f’ing BS.
    Go away, troll.

  6. OzarkHillbilly says:

    @Onward Christian Soldiers:

    Normal marriage was the law of the land for 6,000 years

    Ummmm… 700 wives and 300 concubines is normal? And please, don’t speak to me of God’s law. His law also calls for the stoning of non virgin brides.

  7. OzarkHillbilly says:


    I recall there being a big outrage on the right when the Obama administration chose not to defend DOMA.

    And then they got to appoint their own legal team so they were “full of sound and fury, signifying nothing”.

  8. Ron Beasley says:

    @Onward Christian Soldiers: Go back and read your precious Bible. Until about 1600 years ago normal marriage was polygamy and concubines. One man and one woman is not once mentioned in either the Old or New Testament. Monogamy was not ordained by God but by the Roman empire.

  9. JohnMcC says:

    Advice to (so-called) conservatives from the right-wing Washington Examiner: Don’t invoke Dred Scott in Response to Gay Marriage Decision. http://www.washingtonexaminer.com/note-to-conservatives-dont-invoke-dred-scott-in-response-to-gay-marriage-decision/article/2567186

    Interesting facts about the decision: It was a 7-2 decision. Seven Justices had been nominated by pro-slavery southern presidents. Five Justices came from slave-owning families. Mr Scott did not attempt to gain his freedom while he was actually living in the north (Wisconsin & Missouri) but after he voluntarily returned to Louisiana. He apparently had a wonderful relationship with his original owner, a professional soldier named Peter Blow, whose sons paid legal expenses for Mr Scott’s suit.

    The decision simply denied that blacks were capable of being citizens and that therefore the Missouri Compromise was unconstitutional. This meant that slavery would be legal everywhere in the U.S. including in states that had passed emancipation. So many people in the non-dixie states were outraged that it pretty much guaranteed the election of Lincoln in 1860 whereupon the cadets at the Citadel (my father’s alma mater, incidentally) fired on Fort Sumter and there went the balloon. http://www.pbs.org/wgbh/aia/part4/4p2932.html

    Totally off topic, I guess. But I found it interesting.

  10. Mr. Prosser says:

    @HarvardLaw92: @OzarkHillbilly: @Ron Beasley: Non pascebatis troglodytam.

  11. Tyrell says:

    One thing that is needed is to get all those young, healthy people to sign up. They probably would, if you could get them to stop playing “Assassin’s Creed” long enough in their parent’s basement.
    Another thing is to do away with the penalty. Instead offer incentives: free theme park tickets, free spa visits, free HBO – Cinemax, and free Taylor Swift concert tickets. Also a drawing – winners get dinner dates with Scarlett Johansson.
    All this laptop personal info/data that doctors spend your entire visit on (“hello, how are you feeling? …..take these twice a day, have a good day”). I have yet to figure out why my doctor asks all those questions about my parent’s health – I am there, not them ! I have an idea: the doctors have to pay their patients – $25 for every page of information that they enter into those laptops. My doctor owes me about $300.
    Have more choices for plans. I need dental coverage, but I definitely don’t need birth control. Let the people have more choices as to what they want, and what they don’t need.
    Let people keep their health plan if they like it. And their doctor. I know of one person who lost his health plan. It covered vision, dental, and a million dollars worth of treatment, yet the Obama system would not allow it ! Outrageous ! The local news reported about a man being treated for cancer. Obama’s plan did not include his local doctor. He would now have to drive 6 hours for the nearest specialist to treat him. At his age, that is out of the question . Another Obama care outrage.
    “If you like your health plan you can keep it.” “You can keep your doctor”
    “We have to pass it so we can find out what is in it”
    Watch out later this year – the plan’s rates are expected to go way up.

  12. Tony W says:


    Watch out later this year – the plan’s rates are expected to go way up.

    I think this is the 3rd year in a row I’ve heard this. Still waiting for doomsday. I suppose if Republicans say it often enough eventually something will happen then the prognosticators will be proven right.