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.