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The First, not Final, Word on Obamacare

Last March, during the three days of oral argument over the constitutionality of Obamacare in NFIB v. Sebelius, Paul Clement argued that if the individual mandate provision of Obamacare was unconstitutional, then the entire 1,000-plus page law should be overturned.  He supported his argument with one of the longest Supreme Court decisions in history, Buckley v. Valeo.  In that 1976 decision, instead of overturning the Federal Election Campaign Act and sending it back to Congress, the Court selectively upheld, overturned or modified parts of the law.  Far from clarifying the law’s meaning, Buckley set the stage for decades of lawsuits that continue to this day.

Clement certainly called it:  The NFIB decision upheld the individual mandate on very narrow grounds as a tax and overturned the requirement for states to expand Medicaid, leaving the rest of Obamacare untouched despite the effects the ruling has throughout the law.  We can expect hundreds of more suits against provisions of Obamacare over the years, attacking it piece-by-piece.  Indeed, these suits have already begun.

The majority of the Supreme Court upheld the individual mandate as a tax, but a new lawsuit is challenging the constitutionality of how this so-called tax was passed.  Under Article I, Section 7 of the Constitution, all taxes must be introduced in the House of Representatives, and Obamacare originated in the Senate.  Meanwhile, dozens of corporations and other organizations have filed suits against Obamacare’s requirement that they provide health insurance for their employees that includes coverage for contraception.  These companies, like Hobby Lobby, are owned and operated by Americans with strong religious objections to paying for contraceptives, and claim such a requirement violates their First Amendment rights to freely exercise their religion. 

That’s just scratching the surface.  Health and Human Services has barely begun to propose regulations regarding health insurance exchanges and other aspects of Obamacare.  Often, federal agencies take great liberties with the law they’re charged to enforce and exercise authority far beyond what’s in the law.  When-not if-that starts to happen, there will be even more lawsuits challenging these regulations as arbitrary and capricious.  One can only imagine the challenges that will arise from actions of the Independent Payment Advisory Board, which is tasked with finding cost savings in Medicare without affecting coverage or quality.  A lawsuit is already pending that challenges the board’s very existence.

With the NFIB decision and the re-election of President Obama, progressives insist that Obamacare is here to stay.  To a certain extent that’s true, but as the law is implemented and the realities set in, the fight against this still-wildly-unpopular law will only get more heated and more litigious.  So, far from being the final word on Obamacare, the NFIB decision has already proved to be closer to the first word as far as the courts are concerned.

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Wednesday, 23 August 2017
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