Sorting out the new challenges to Obamacare

As a new year starts in Washington, a different set of challenges could be on the horizon for the Affordable Care Act or Obamacare.


Last month, the Supreme Court accepted two cases that contest the power of Congress to compel for-profit companies, with religious convictions, to provide birth control insurance to its employees or pay a fine. The Justices will hear the Hobby Lobby and Conestoga Wood cases in March 2014.


And earlier this week, the Supreme Court turned away Liberty University’s attempt to overturn a key part of the health care law: the employer mandate. Liberty also had sought review of new challenges to the individual insurance mandate.


But those three cases aren’t the only ones in the pipeline of legal challenges to the Affordable Care Act.


On Tuesday, a judge in the US District Court for the District of Columbia heard arguments in the case of Halbig v. Sebelius, which is one of several state-based challenges.


Plaintiffs in the case say that when Congress wrote the Affordable Care Act, it said that premium subsidies for consumers would be available for certain qualifying citizens who were “enrolled through an Exchange established by the State.”


However, almost three dozen states declined to set up their own health care exchanges, leaving that work up to the federal government. The plaintiffs believe a strict interpretation of the law would prevent anyone in those 34 states from receiving subsidies to buy health insurance, which would place a burden on consumers, and that the IRS should block the law until the dispute is resolved.


Another legal protest that may reach the Justices in coming months is a claim, now under review by a federal appeals court in Washington, that the penalty provision that the Supreme Court upheld last year is itself unconstitutional under the Origination Clause, which holds that all bills for raising revenue “shall originate in the House.”


The argument in Sissel v. U.S. Department of Health and Human Services is that this provision is invalid because it originated in the Senate.   A federal judge blocked that claim, on procedural grounds.


As part of that lawsuit, the challenging lawyers are contending that the individual mandate was explicitly not upheld by the Supreme Court last year, so it is open to different opposing arguments.


Joining us to discuss these issues and other challenges to the law are two of the nation’s leading experts on the subject.


Jonathan H. Adler is the inaugural Johan Verheij Memorial Professor of Law and Director of the Center for Business Law & Regulation at the Case Western Reserve University School of Law. Along with the CATO Institute’s Michael Cannon, he was argued extensively against the ACA.


Simon Lazarus is Senior Counsel to the Constitutional Accountability Center. Before joining CAC, Si was Public Policy Counsel to the National Senior Citizen Law Center. He also has written extensively about the Affordable Care Act, and testified about it before Congress.


You can listen to the entire podcast below, or click here to download the audio.


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