Constitution Daily

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A constitutional look at how Obamacare made it to today’s historic deadline

March 31, 2014 by Scott Bomboy


Today is the final day many eligible people can enroll in health coverage for 2014 under the Affordable Care Act, or Obamacare. As the intense political and legal battles continue, but here’s a look at the constitutional issues in play and how we got here.

The Patient Protection and Affordable Care Act passed Congress in May 2010, after Democrats gained control of the House and Senate after President Barack Obama’s election in 2008.

Link: Read The Full Act

The Democrats had enough votes in the Senate to overcome a cloture vote and filibuster, and enough Yes votes in the House to pass the ACA, despite 34 Democrats who voted against it. The Republicans were unanimous in their opposition to Obamacare. President Obama signed the bill into law on March 23, 2010. Almost immediately, opponents mounted constitutional challenges to the ACA.

Conservative opposition to Obamacare also fueled voting results in the 2010 mid-term elections. The Republicans took back control of the House and the Tea Party movement gained popularity in the ACA’s backlash.

The most serious constitutional challenge, so far, to Obamacare came in June 2012, when the Supreme Court ruled on the legality of parts of the very complicated law.

Using an approach endorsed by Georgetown Law professor Randy Barnett, the ACA was challenged on the constitutionality of the individual mandate, the part of Obamacare that requires many people to carry health insurance, or face a financial penalty.

Barnett argued that such a provision posed an “unprecedented” conflict with the Constitution’s Commerce Clause. Five Supreme Court Justices agreed with Barnett.

“The individual mandate cannot be upheld as an exercise of Congress’s power under the Commerce Clause,” Chief Justice John Roberts said in his opinion in NFIB v. Sebelius. “That Clause authorizes Congress to regulate interstate commerce, not to order individuals to engage in it.”

However, Chief Justice Roberts said that Congress had the legal power to collect the individual mandate financial penalty as a tax, payable on annual income tax forms. So the Supreme Court upheld most of the ACA as constitutional.

The ruling shocked the ACA’s opponents and confused several major news outlets, which initially reported the wrong outcome from the decision.

And almost immediately, new legal challenges began as the Supreme Court’s Obamacare decision became an issue in the 2012 presidential contest between Obama and GOP challenger Mitt Romney.

After Obama’s re-election in November 2012, the GOP retained control of the House and the Democrats controlled the Senate, making a legislative repeal of the ACA politically unlikely (despite attempts to defund the ACA in several political battles).

There are two related challenges to parts of Obamacare in the Supreme Court that were heard last week: the Hobby Lobby-Conestoga Wood case, and a ruling is expected in June 2014. In those cases, lawyers for two for-profit companies whose owners have religious convictions believe another part of the ACA is unconstitutional.

Within the employer mandate, which forces many larger companies to provide health insurance to employees, or pay a fine, the companies say coverage including contraception conflicts with their religious beliefs.

If the challenge is successful, it could lead to some companies not having to pay fines for opting out of insurance coverage, which would affect the economic foundation of the ACA and the feasibility of some private insurers remaining in the program. But the decision wouldn’t find that the entire ACA is unconstitutional.

Another constitutional issue raised by Obamacare opponents is the series of delays and implementation policy decisions made by the Obama administration as the March 31, 2014 enrollment deadline approached.

In fact, the March 31, 2014 enrollment deadline was one of those decisions, due to a conflict in how the law was written. And in some cases, people who tried to enroll by March 31 and couldn’t complete the process will receive an extension.

These opponents believe President Obama is acting in bad faith constitutionally, by not enforcing the entire ACA as written and passed by Congress. They cite Article II, Section 3 of the Constitution, which requires the President to “take care that the laws be faithfully executed.”

The Obama administration and ACA supporters argue that the President is acting within executive powers in choosing the manner in how the regulations are implemented.

The big constitutional challenge could come in about two years. If the Republicans win the White House in 2016 and control the House and Senate, the Party could pass a law attempting to repeal Obamacare, or even try for a constitutional amendment.

Some supporters of the repeal theory point to the 21st Amendment, which repealed Prohibition, as a model for success.

Critics say the ACA, a law with more than 2,000 pages, would be much tougher to repeal in reality, compared to the 21st Amendment (which repealed the 18th Amendment with a one-sentence statement).

Another problem, they say, is more than 6 million people have enrolled in ACA health insurance programs as of last week. By 2017, when the earliest repeal attempt can be mounted, the law will be entrenched and intertwined with other health programs at a national and state level.

Forbes opinion editor Avik Roy, a very vocal Obamacare opponent, said that this is a practical problem that repealers will need to consider.

“It’s very difficult, once a law that transformative has been in effect for seven years, to repeal it,” Roy says. “I think there are more attractive ways to achieve the goals of conservatives than repeal and replace.”

Scott Bomboy is the editor in chief of the National Constitution Center.


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