October 22 2013
During the government shutdown, Obamacare advocates repeatedly emphasized that health reform is the “law of the land,” and the Supreme Court upheld its constitutionality in 2010. It’s true, but the Supreme Court only heard arguments about the individual mandate and the Medicaid expansion. These are two central facets of the law, but not the only provisions under legal scrutiny. Obamacare’s days in court are not over.
Naturally, to manipulate nearly one-fifth of our national economy, the federal government needed significantly expanded power in several directions: health and human services, the IRS, and even in the creation of new (constitutionally questionable) bodies and regulations. The courts should stand up against these abuses of power and uphold the true “Law of the Land” – the Constitution.
Coons v. Geithner is a challenge to Obamacare’s Independent Payment Advisory Board (IPAB), currently awaiting oral argument in the 9th Circuit Court of Appeals. This 15-member board is not elected, serves 6-year terms, and has unprecedented power to reduce Medicare spending.
IPAB’s “recommendations” become law unless a supermajority in both houses of Congress vote to stop them and replace the IPAB cuts with cuts of an equal amount. Also, a provision in Obamacare protects IPAB from Congressional review until a short window in 2017. This is clearly a violation of the doctrine of separation of powers that characterizes the Constitution.
Another case, Sissel v. HHS, has been amended to reflect the Supreme Court’s ruling that the individual mandate penalty is a tax. This case is now challenging Obamacare’s legitimacy on Origination Clause grounds in appellate court in DC. Article I, Section 7, Clause 1 of the Constitution specifies that revenue-raising bills must originate in the House. Through some Congressional gimmickry, Obamacare essentially originated in the Senate. The Appellant’s opening brief is due October 24.
For each of Obamacare’s 2,000 plus pages, there have been 100 pages of regulations. Many of these regulations have also opened new constitutional law questions.
The Department of Health and Human Services (HHS) was tasked with defining many aspects of Obamacare including “minimum essential coverage” and “preventative care.” HHS ruled in February 2011 that plans should include first-dollar coverage of all FDA-approved contraceptives. Seventy-fourcases, involving more than 200 plaintiffs are challenging this regulatory provision because buying insurance for these drugs runs contrary to their religious beliefs.
Another constitutional challenge relates to a rule issued by the IRS: State-based exchanges represent a major component of Obamacare, but 34 states chose not to establish an exchange and default to a federal exchange. Importantly, the law only provides that state-run exchanges receive federal subsidy money.
The IRS sought to “fix” this provision by writing a rule funneling federal subsidies to non-establishing states. There are now four cases, Halbig v. Sebelius, Pruitt v. Sebelius, King v. IRS, and Indiana v. IRS challenging this IRS regulation.
Obamacare’s constitutional questions don’t stop here. When the White House unilaterally delayed the employer mandate by one year, Judicial Watch announced a potential challenge to this overreach of executive authority. Another potential lawsuit lies in an Office of Personnel Management (OPM) rule that delivers a special employer contribution into Obamacare’s exchanges for Members of Congress and their staffs. This OPM rule is the result of a backroom deal involving President Obama and congressional leaders, and Sen. Ron Johnson, R-Wis., has hinted that he may challenge it in court.
Obamacare’s immediate effects will be felt in significant changes to health plans, family budgets, the medical community, and the economy at large. But perhaps the most lasting and significant effects of Obamacare will be on the U.S. Constitution, which is truly the law of the land. The courts will have many more chances to contain the health law’s expansion of government power; let’s hope they do.