Posted on 06/02/2013 6:48:55 PM PDT by Libloather
President Obama’s healthcare law is under attack in the courts even as the administration sprints toward full implementation.
Despite surviving a stiff challenge at the Supreme Court last year, some of the law’s biggest provisions remain at risk from legal challenges.
One set of lawsuits accuses the Internal Revenue Service of illegally implementing new subsidies to help people buy insurance. Separately, more than 60 lawsuits have been filed challenging the law’s mandate for health plans to cover birth control.
A loss for the administration on the contraception mandate would undermine a key selling point for the law that Democrats used to court women in the 2012 elections.
The challenge to the law’s insurance subsidies, while more obscure, poses a far bigger and more dangerous threat to the Affordable Care Act.
Simon Lazarus, senior counsel at the Constitutional Accountability Center, has argued that there’s a very real chance the Supreme Court’s conservative majority would strike down the IRS’s approach to insurance subsidies if it gets the chance.
Lazarus supports the healthcare law and believes the IRS has taken the right approach to implementing its subsidies. But it’s easy to see how the case could play out under the strict “textualist” approach championed by Justice Antonin Scalia, he said.
“One has to be concerned about that,” Lazarus said.
If the Supreme Court or judges in the lower courts adopt a narrow reading of the healthcare law, the consequences could be “devastating,” Lazarus said.
That’s exactly why the people behind the lawsuit think they have a real chance to win.
The healthcare law sets up new marketplaces where people can buy health insurance. Most people who use the marketplaces will be eligible for a subsidy to help pay for their premiums.
The law’s challengers say subsidies should only be available to people who get insurance through a state-run marketplace. If the federal government runs a state’s marketplace — which it will in the majority of states — no subsidies should be available, the lawsuit argues.
Why not? Because the text of the Affordable Care Act refers to subsidies flowing through exchanges “established by the state.”
The IRS has said subsidies will be available in all 50 states, no matter who runs the exchanges. The law’s critics say that clearly contradicts the text of the statute.
“The IRS rule we are challenging is at war with the Act’s plain language and completely rewrites the deal that Congress made with the states on running these insurance exchanges,” attorney Michael Carvin said in a statement when his clients filed their challenge to the subsidies.
The law’s supporters say the context of the entire statute makes clear that Congress intended for all 50 exchanges to function the same way.
“There are layers of reasons why this claim would and should be rejected,” Lazarus said.
But a judge or Supreme Court justice like Scalia could easily hone in on the “established by the state” language, making the case for “textualism” — adhering strictly to the specific words used in a statute, rather than trying to determine its intent.
“It’s a way of taking one isolated provision of a statute and just reading that one provision,” Lazarus said.
Lazarus has been urging the left to focus aggressively on the subsidies challenge, even though the lawsuits are still in their early stages.
Two suits have been filed challenging the subsidies; neither has gotten a hearing yet in court. There’s a chance the cases would have to wait until at least next year, for procedural reasons.
Although they don’t believe the suits stand much chance of success, some supporters of the healthcare law believe their side lost the public relations battle over the Supreme Court’s ObamaCare case, in part because liberal academics didn’t take the challenge seriously.
“However such maneuvers play out in court, the administration and its allies need to play their game out of court as well. Specifically, they need to not repeat their near-death experience with the individual mandate challenge, when they left their adversaries free to frame the legal issues, unanswered, for the media, politicians, and the public,” Lazarus wrote in a recent op-ed.
The more immediate legal threat to the Affordable Care Act comes from challenges to its birth control mandate.
The contraception mandate is a relatively small part of the overall healthcare law, but it is a major talking point for the White House.
Obama focused extensively on the birth-control mandate during the 2012 campaign, and Democrats made the policy a cornerstone of their aggressive pitch to female voters.
An eventual Supreme Court decision on the contraception policy might not have huge implications for the rest of the healthcare law, but it would be politically explosive.
Two federal appeals courts have heard oral arguments over the contraception policy, and challengers have filed 60 lawsuits in courts across the country.
The plaintiffs, most of whom are business owners, say the policy violates their First Amendment right to religious liberty by forcing them to provide a service they find immoral.
The Obama administration has given an exemption to churches and houses of worship, and has carved out a middle ground for religious-affiliated employers like Catholic hospitals and universities.
For-profit companies are also challenging the policy. Those cases have moved faster, and though courts have been split on the issue, several have questioned whether business owners can invoke religious liberty over healthcare plans they don’t provide personally, but rather through their companies.
The 3rd Circuit Court of Appeals heard a case this week filed by a cabinet-making company whose owners object to providing contraception. The lower court in that case sided against the company, saying religious liberty belongs to people — not corporations.
"Religious belief takes shape within the minds and hearts of individuals, and its protection is one of the more uniquely 'human' rights provided by the Constitution,” the lower court said.
Anything to do with a Tony Weiner?
By the time all of these cases go to court we will be so deep in Obamacare there will be no way oput.
Many Insurance companies will have stopped writing policies and others will be out of business.
Obama knows this and we know it , but we have a Senate owned by owned lock, stock, and barrel by Obama that will not stop this disaster in the making.
Roberts has already ruled this law is a political problem and not a legal problem. The fix is in.
.... And you absolutely know that as the price of health care and insurance costs blows clear through the roof, the Dems are going to blame this high rising costs squarely on the Republicans!!! After all ... they really do understand the minds of the so called Low Information Voters.
..... I sincerely hope the GOP realizes this and actually have a planned response to the accusation at the ready. Otherwise the Liberals just may have a major strongly growing and possibly a "Slam Dunk" devastating PR win on their side if they don't. The liberal response to this is pretty much a given and easily predicted. Does the GOP ever look beyond the current and present with their strategies? I sure hope so for this countries sake.
Roberts ruled PPACA is a tax.
The tax is assessed on every person; payment is waived for those complying with a Federal Govt. demand to contract with an insurance company, and for others determined by the Executive.
This tax is illegal. Direct taxes must be apportioned. This tax is not apportioned.
The only other direct tax that is not apportioned is the Income Tax, which required an Amendment. There is no Amendment authorizing a direct tax for the PPACA.
Furthermore, tax payment waivers given by Executive caprice are not only completely unprecedented they make tax payment a matter of political discretion and favoritism.
“accuses the Internal Revenue Service of illegally implementing new subsidies to help people buy insurance”
Imagine that....
Emergency hearings on some of these cases would be nice, as we are only months away from full implementation of this particular nuclear strike against the working person.
With a Chief Justice that can’t find the 10th Amendment, I wouldn’t hold my breath.
Roberts was threatened in my opinion. We now know how BO operates. We always suspected, but now we know.
The fly in your analysis is that the IRS is collecting the tax. Despite the fact it has nothing to do with income. The fix is in. The problem is Income Tax Collection ... has been ruled Constitutional. The ‘Rats specifically wrote the law to have IRS enforcement to make it untouchable. The health tax paperwork is just like any other form for the 1040.
PPACA is not a tax on income.
[[Court challenges could tear down major pieces of ObamaCare]]
OR, anough states with enough backbone and moral values and sense of consitutionality coudl REFUSE to allow the federal gfovenrment to impose an unconstitutional law in their state that the federal govenrment woudl be FORCED to drop the whoel thing liek the law they tried passign i nthe past that was SUCCESFULLY recidned because enough states stood togehter and REFUSED to cow tow to tyranical govenrment laws
But not enough states have the intestinal fortutude to stand up agaisnt a corrupt govenrment any logner- so now we have to rely on a surpeme court who is now i nthe back pocket of hte US gvoenrment thanks to a traitorous john roberts
“But a judge or Supreme Court justice like Scalia could easily hone in on the “established by the state” language, making the case for “textualism” — adhering strictly to the specific words used in a statute, rather than trying to determine its intent.”
Lazarus outted himself as someone who interprets the intent of a statute - he probably interprets the intent of the Constitution as well. May Scalia live and work until he’s a century old.
No, he’s just a mental midget with a law degree and a robe. Clarence Thomas would have b-slapped the ‘Rats until they begged for mercy. Roberts is a flake and incompetent. He is proud of his ruling and laughs at anyone who comments about it to his face. A borderline sociopath.
This thing is going to collapse. Their target audience is half deadbeat anyway. They are behind on their taxes...don’t even file and owe child support. For this to work you have to have a checking account for direct withdrawal. These folks live through currency exchanges because of previous liens their checking accounts will be garnished.
Very good analysis. Clearly stated and reasoned.
Thanks
Doesn’t matter. Congress tells the IRS what to include in the form. A credit for the number of dependents has nothing to do with income. If you receive company sponsored life insurance benefits over a certain amount you pay a tax. Again nothing to do with income. Congress wrote the law.. Only Congress can change the law.
That the tax is administered by the IRS is irrelevant.
The tax is not a tax on income. It is a head tax, a capitation.
The tax is assessed and payment is waived for those complying with a Federal Govt. demand to contract with an insurance company, and for others determined by the Executive.
A payment waiver is not a credit.
Also, compulsion to contract is illegal.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.