With the Obama administration’s defeat in Burwell v. Hobby Lobby, all eyes now turn to further Obamacare challenges. Chief Justice John Roberts shockingly greenlit Obamacare itself by converting it into a tax from a stated penalty, but he has also shown a partial willingness to chip away at the law.
There are two more upcoming cases on Obamacare worth watching. We can only hope that such lawsuits are just the beginning when it comes to the implementation of a law with regulations stacking up to eight feet tall.
Halbig v. Burwell: This case seemingly turns on a technicality, but it could completely sink the workability of Obamacare itself. The law allows for federal subsidies for those who buy their care through state exchanges; if subsidies are unavailable, those people can claim exemption from Obamacare penalties for hardship reasons.
There is one major problem for the Obama administration: 34 states refused to start state healthcare exchanges, and the law makes no provision for subsidies for those who buy their coverage through the federal exchange. That means that millions of people who applied for coverage through the federal exchange could be left without subsidies, freeing them of Obamacare penalties and destroying the base upon which Obamacare is based.
As Professor Jonathan Turley of George Washington University writes:
The administration’s loss in the Hobby Lobby case is a bitter pill to swallow, but it is not a lethal threat to Obamacare. For critics of the law, Halbig is everything that Hobby Lobby is not. Where Hobby Lobby exempts only closely held corporations from a portion of the ACA rules, Halbig could allow an mass exodus from the program. And like all insurance programs, it only works if large numbers are insured so that the risks are widely spread. Halbig could leave Obamacare on life support — and lead to another showdown in the Supreme Court.
There are two other cases pending on the same topic.
Sissell v. Health and Human Services: The DC Circuit Court of Appeals has yet to decide on this case, which questions how Obamacare could be Constitutional given the Supreme Court’s bizarre reclassification of Obamacare as a tax rather than a penalty.
All revenue measures must originate in the House of Representatives, but Obamacare originated in the Senate. Pacific Legal Foundation is behind the case, and its principal attorney explains, “When lawmakers passed the ACA, with all of its taxes, did they follow the Constitution’s procedures for revenue increases? The Supreme Court wasn’t asked and didn’t address this question… The question of whether the Constitution was obeyed needs to be litigated, and PLF is determined to see this important issue all the way through the courts.”
Obamacare is a legal thicket that will only continue to rack up injuries – and accompanying lawsuits – as time passes. If the Roberts Court is more receptive to clipping away at Obamacare than it was to dismantling it, conservatives may yet have some legal hope.
Ben Shapiro is Senior Editor-At-Large of Breitbart News and author of the new book, The People vs. Barack Obama: The Criminal Case Against The Obama Administration (Threshold Editions, June 10, 2014). He is also Editor-in-Chief of TruthRevolt.org. Follow Ben Shapiro on Twitter @benshapiro.