Top 5 Ways Conservatives Are Still Trying To Gut Obamacare In Court

January 7, 2014 6:00 a.m.

Did you think the legal challenges to Obamacare would end after the Supreme Court largely upheld it in 2012? Think again.

Conservatives haven’t given up on their quest to gut Obamacare through a variety of creative lawsuits — many of which have yet to be decided in court.

Attempting to track every anti-Obamacare lawsuit would be like attempting to track every fish in the ocean. So here’s a guide the right’s five most prominent legal arguments aimed at collapsing Obamacare.

The Birth Control Mandate Violates Religious Freedom!
BACKGROUND: Citing religious concerns, several employers have sued to block an Obamacare regulation requiring for-profit businesses to cover contraception for female employees without co-pays as part of their insurance plans. A lawsuit by Hobby Lobby, an Oklahoma-based retail chain that closes on Sunday in an effort to comply with the Bible, contends that the rule violates the owners’ ability to live and do businesses in accordance with their religious beliefs. The case is set to be heard by the Supreme Court this spring.

LEGAL ARGUMENT: The mandate violates the Religious Freedom Restoration Act of 1993, which says laws that substantially burden religious liberty must have a compelling governmental interest and be narrowly tailed to meet that interest. (Counterpoint: For-profit businesses that employ and serve members of the general public aren’t substantially burdened; they’re merely required to provide employees with the same basic standard of health coverage as their counterparts.)

AT STAKE: The implications of a ruling against the government in Hobby Lobby v. Sebelius could be profound and far-reaching. It could expand the concept of corporate personhood by granting religious liberty to corporations, potentially opening the door for corporations to mount religious-based challenges all sorts of laws that they don’t want to follow.

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Opting Out Of Birth Control Coverage Also Violates Religious Freedom!
BACKGROUND: A separate legal challenge to the birth control mandate, which achieved its first success last week with an emergency injunction from the Supreme Court, has been brought by religious nonprofits who aren’t content with the accommodation that lets them opt out of birth control coverage and puts the onus on the insurer to provide the coverage without co-pays. These Roman Catholic organizations, of whom the lead plaintiff is a group of nuns in Colorado, argue that signing the opt-out form also violates their religious freedom by makes them complicit in helping their female employees gain access to contraceptives.

LEGAL ARGUMENT: Forcing religious nonprofits to sign the opt-out form is illegal under the Religious Freedom Restoration Act because it serves as a permission slip for the insurer to provide birth control to female employees. (Counterpoint: These organizations aren’t required to pay for any such coverage and signing a form to utilize the opt-out feature doesn’t burden them.)

AT STAKE: The merits of the case have yet to be heard by the lower courts, but Justice Sonia Sotomayor’s recent decision to temporarily halt the mandate breathes some life into the lawsuit after lower courts denied an emergency stay. If the nuns ultimately win their challenge, it could significantly weaken the birth control mandate by further expanding the carve-out for religious groups.

The Federal Marketplaces Aren’t Allowed To Provide Subsidies!
BACKGROUND: An obscure legal argument hatched by conservative Obamacare foes Michael Cannon and Jonathan Adler is that federally-run insurance exchanges aren’t allowed to offer subsidies to uninsured Americans who sign up. The federal government is building 36 exchanges, all in states that declined to build their own, as the law encouraged. The case, Halbig v. Sebelius, was argued in a district court last month.

LEGAL ARGUMENT: The letter of the Affordable Care Act statute says the subsidies are to be provided “through an Exchange established by the State.” That part of the law doesn’t explicitly state that residents of states that cede authority to build the exchanges retain their right to subsidies. (Counterpoint: Agencies have flexibility when the statute is vague and a federal exchange is covered under the purposes of the law; also, there is scant evidence Congress intended to bar subsidies in federal exchanges, and many reasons to believe the opposite.)

AT STAKE: The lawsuit is seen as a long-shot but could cripple Obamacare if it succeeds. A whopping 36 states have refused to build their own insurance exchanges, leaving the task to the federal government. If residents of these states are ineligible for subsidies, the Affordable Care Act becomes unaffordable for many. Republicans would block a legislative fix, which means the law would unravel.

Members Of Congress And Staff Mustn’t Get Health Care Subsidies!
BACKGROUND: An Obamacare provision inserted by Sen. Chuck Grassley (R-IA) requires members of Congress and some staff to drop their employer-sponsored coverage and buy health insurance on the law’s exchanges. A ruling last year by the congressional office that handles employee compensation held that members and staff are entitled to an employer contribution, as most employees of large (and many small) organizations get. On Monday, Sen. Ron Johnson (R-WI) filed a lawsuit arguing that that ruling is invalid.

LEGAL ARGUMENT: Obamacare doesn’t grant Congress the legal authority to provide lawmakers and staff with an employer contribution to buy insurance on the exchanges. (Counterpoint: Yes, it does, because there is nothing stopping Congress, like any other employer, from helping employees buy coverage.)

AT STAKE: If the subsidies are denied, many lawmakers (including Johnson, who is worth $12.5 million) would hardly notice it, but staff would feel the pinch. Rep. Jim Sensenbrenner, a fellow Wisconsin Republican, derided Johnson’s lawsuit as “frivolous” and a “political stunt” that, if somehow successful, would result in a brain drain of talented congressional staffers as their health costs would surge.

Obamacare Is Unconstitutional Because The Senate Wrote It First!
BACKGROUND: A lawsuit led by Rep. Trent Franks (R-AZ), backed by some 40 Republicans, invokes a part of Constitution to argue that Obamacare is invalid because the crux of the legislation was written and first passed by the Senate.

LEGAL ARGUMENT: The origination clause of the Constitution says bills that raise revenue must originate in the House of Representatives. (Counterpoint: That provision is designed to give the House the first bite at the apple at revenue-raising bills — by letting them use a “blue slip” to nix such bills that pass the Senate first — not to overturn duly enacted laws.)

AT STAKE: Chief Justice John Roberts on Monday turned down a request for an emergency injunction by a group of doctors who filed a lawsuit making this argument. The case is highly unlikely to go anywhere as the provision of the Constitution has not been interpreted this way for countless revenue-raising bills written by the Senate and passed by the House — including the Republican-led House in recent years. Success for the lawsuit would set an astounding new legal precedent that threatens to take down other laws. Roberts didn’t feel the need to explain his decision.

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