Constitution Daily

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A look at Obamacare’s top constitutional challenges

October 2, 2013 by Scott Bomboy


The official launch of the Affordable Care Act, or Obamacare, was rocky at best on Tuesday. But a bevy of court challenges pose some potentially formidable obstacles for the gigantic federal-state program.

512px-Obama_signs_health_care-20100323Experts say the full launch of Obamacare, as it is most widely known, is the biggest debut of a government program since Medicaid in 1965. It’s also a heated topic of political debate and one of the main reasons for the current federal government shutdown in Washington.

The catalyst for the health-care debate was the June 2012 Supreme Court decision that upheld key parts of the Affordable Care Act, while striking down a section about states and Medicare.

And it could be in the federal court system where the Affordable Care Act, or Obamacare, meets its immediate fate.

Even if (or when) the Republican Party can control both houses of Congress and the presidency, the sheer number of people in the health-care program could trigger years of legal challenges.

Those lawsuits would have to get in line behind more than 70 legal challenges already underway against Obamacare.

The American Civil Liberties Union and the Beckett Fund for Religious Liberty estimate there are 73 legal challenges, with more than 200 plaintiffs, to parts of the ACA they believe violate their religious beliefs. (In addition, there is at least one potentially significant challenge on different grounds.)

The groups say 56 of the cases are currently pending, including 38 cases brought by for-profit companies.

One case in particular seems on a fast track to the Supreme Court, the case of Hobby Lobby Stores v. Sebelius.

The Obama administration asked the Supreme Court on September 19 to grant the case for review during the Court’s current term. In all likelihood, the Court will accept the case, based on the precedents set by similar executive branch requests.

In July, U.S. District Judge Joe Heaton granted Hobby Lobby, a craft store chain, and its sister company, Mardel Christian bookstore, a temporary exemption from a ACA requirement that it provide insurance coverage for morning-after pills and similar emergency birth control methods and devices.

The Obama administration's lawyers want the Justices to decide if corporations can claim a religious exemption to this one part of the ACA.

Another case that could be heading to the Court soon is Conestoga Wood Specialties Corp. v. Health and Human Services Department.

A Third Circuit Court ruling created a split between circuit courts on the issue at the center of the Conestoga case.

Conestoga is a Mennonite family-owned, profit-making business, and it claims that the ACA’s birth control mandate violates the company’s rights under the First Amendment and the federal Religious Freedom Restoration Act. The Third Circuit rejected that argument.

In addition to challenges based on religious grounds, there is one Obamacare challenge working its way through the legal system.

It comes from cases brought by Oklahoma Attorney General Scott Pruitt and Michael Carvin, from the Jones Day law firm. The key arguments in each case were written by Michael Cannon from the Cato Institute and Jonathan Adler from Case Western Reserve University.

One argument is that only states that set up and operate insurance exchanges are eligible for federal subsidies to help low-income people buy insurance. Another part of the challenge is the contention that the Internal Revenue Service, which issued the final rules on the ACA, lacked the constitutional powers to do so.

Still another challenge, Coons v. Geithner, is from the Goldwater Institute in Arizona. The group claims that Independent Payment Advisory Board, which is responsible for Medicare cuts under the ACA, is unconstitutional because its vast authority is in violation of separation-of-powers principles.

And a challenge from Pacific Legal Foundation, Sissel v. United States Department of Health & Human Services, is seeking to have the entire Obamacare program tossed out on the premise that the bill didn’t originate in the House of Representatives. The bill was amended and passed in the Senate after it received it from the House.

But the Republican Study Committee, a group of House GOP members, expects the Sissel case to be dismissed “based either on mootness or on standing.”

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

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