Republicans officially take over Congress next month, but their leaders do not appear optimistic about fulfilling their campaign promises to repeal ObamaCare.
Soon-to-be Senate Majority Leader Mitch McConnell recently said that scrapping the law was basically impossible because President Obama is “still there.” In other words, Republicans may have to settle for tweaking ObamaCare at the margins for the next two years.
Meanwhile, several lawsuits challenging key provisions of ObamaCare are wending their way through the judiciary. So while Congress may not repeal this misbegotten law, the courts soon could.
The case that’s captured the most recent attention, King v. Burwell, challenges the legality of insurance subsidies offered through the federal HealthCare.gov exchange.
The plaintiffs point to a section of ObamaCare known as 36B, which makes clear that subsidies can only come through exchanges “established by the State.” Thirty-seven states did not create their own exchanges. But the federal government went ahead and distributed subsidies through the exchanges it built and operated on their behalf.
ObamaCare’s backers had long dismissed this case as groundless — until the Supreme Court decided to hear it in March, with a decision expected in late June.
An analysis in the New England Journal of Medicine concluded that if the challengers win, the Affordable Care Act will unravel.
The 37 states relying on HealthCare.gov won’t be able to set up exchanges quickly, given the restrictions in the law, not to mention the cost. And any state that tries to circumvent the law “is sure to face legal challenges, which would introduce additional uncertainty and delay.”
“ACA supporters,” the authors concluded, “have good reason to worry.”
Beyond King, three other cases could disrupt ObamaCare.
Sissel v. HHS argues that ObamaCare violated the Constitution’s requirement that tax bills originate in the House. The bill that Obama signed into law in March 2010 originated in the Senate.
This matters because the U.S. Supreme Court deemed ObamaCare’s central provision — the individual mandate requiring people to obtain health insurance — constitutionally valid under Congress’ power to tax in its 2012 decision upholding the law.
If ObamaCare’s central feature is a tax, then the bill should have been introduced in the House, not the Senate. If the U.S. Supreme Court ultimately agrees with the plaintiffs, the entire law could get tossed.
The third lawsuit threatening ObamaCare comes from Congress. In November, House Republicans sued Obama, arguing that the administration violated the Constitution by unilaterally rewriting parts of the law to minimize political damage before the midterm elections.
The case focuses on Obama’s decision to delay the employer mandate — twice. GOP lawmakers hold that Obama’s action “directly contradicts the clear and plain language of the health care law.” As House Majority Leader John Boehner put it, the courts can’t let “the president can get away with making his own laws.”
Finally, the court system could soon strike down ObamaCare’s “Independent Payment Advisory Board” in Coons v. Lew.
Under the law, IPAB was to consist of 15 members appointed by the executive branch and confirmed by the Senate. To date, no appointments have been made. The board will propose cuts in Medicare spending if costs in the program grow beyond a certain rate. Those cuts automatically become law unless Congress steps in to stop them.
Outgoing Sen. Tom Coburn, R-Okla., and Rep. Phil Roe, R-Tenn., note that IPAB’s cost-cutting mandates need only be “related” to Medicare, which they rightly note “can be construed to include almost anything.”
The plaintiffs in Coons v. Lew argue that IPAB violates the separation of powers guaranteed by the Constitution. In December, Republicans asked the Supreme Court to hear the case and promised another vote to scrap the board. That measure has passed the House twice, only to get buried in the previously Democrat-controlled Senate.
For the next two years, congressional Republicans will have a tough time repealing in full the president’s signature achievement. But that may not matter. While McConnell acknowledges “the chances of (Obama) signing a full repeal are pretty limited,” he adds that “who may ultimately take it down is the Supreme Court of the United States.”
One can only hope.