Michael Cannon at Cato writes:
There have been several developments with respect to the Obama administration’s attempt to impose the Patient Protection and Affordable Care Act’s employer-mandate penalties and individual-mandate penalties where it has no authority to do so.
Read about it here: The Obama Administration’s Illegal Health Care Taxes: an Update | Cato @ Liberty.
In the Wall Street Journal, lawyers David R. Rivkin and Lee A. Casey write:
Policy problems aside, by transforming the mandate into a tax to avoid one set of constitutional problems (Congress having exceeded its constitutionally enumerated powers), the court has created another problem. If the mandate is an indirect tax, as the Supreme Court held, then the Constitution’s “Uniformity Clause” (Article I, Section 8, Clause 1) requires the tax to “be uniform throughout the United States.” The Framers adopted this provision so that a group of dominant states could not shift the federal tax burden to the others. It was yet another constitutional device that was simultaneously designed to protect federalism and safeguard individual liberty.
Read more: The Opening for a Fresh ObamaCare Challenge.
Via Jonathan Adler: The Volokh Conspiracy » The Uniformity Clause – Another ObamaCare Challenge?.
From Rick Unger at Forbes:
Under the heading of “it’s not over until it’s over”, the United States Supreme Court has vacated a decision by the Fourth Circuit Court of Appeals, ordering the appellate court to hear arguments on the constitutionality of two key provisions of the Affordable Care Act.
The two issues, which could lead to yet another SCOTUS review sometime during the 2013-2014 court session, involve a challenge to the employer mandate—requiring that employers with 50 or more full-time employees provide health insurance to its workers or pay a fine—and the contraception mandate requiring that health care benefits include a contraceptive benefit without the need for a co-pay.
Read the whole article: The U.S. Supreme Court Allows New Challenge To Obamacare To Go Forward – Forbes.
See also the article by UPI.
At National Review Online, Jonathan H. Adler reviews the pending lawsuits against Obamacare. Some excerpts:
The largest set of PPACA cases are the various challenges to HHS’s contraception mandate, under which employer-provided group-insurance plans must cover all forms of FDA-approved contraception and sterilization procedures. … They contend that such a mandate contravenes the Religious Freedom Restoration Act of 1993 (RFRA), if not the First Amendment’s protection of religious practice too. …
Physician-owned hospitals have raised constitutional challenges to PPACA provisions limiting their reimbursement under Medicare, and other service providers are likely to challenge implementation decisions that compromise their bottom lines.
In addition, the Goldwater Institute filed the first challenge to the Independent Payment Advisory Board (IPAB) on separation-of-powers grounds.
The Obamacare Cases Keep Coming – Jonathan H. Adler – National Review Online.
There’s also the lawsuit, Oklahoma v. Sebelius, concerning subsidies for exchanges not set up by states: Oklahoma Challenges Obama’s Illegal Employer Tax.
See also: healthcarelawsuits.org.
Ari Armstrong posted a few videos of Dave Kopel, Independence Institute Research Director and professor of advanced constitutional law, on the Supreme Court’s ruling on ObamaCare. Here’s one on Other Possible Legal Challenges to ObamaCare:
Kopel mentions two:
- The conscience mandate: How the HHS’s mandate that everyone buy insurance that covers birth control, even if birth control violates one’s religious beliefs.
- IPAB: The Independent Payment Advisory Board, which the Cato Institute describes as unconstitutional.
From what I’ve read and listened to, I’d expect a lawsuit concerning the type of “tax” (penalty!) applies for not buying government-approved insurance. More here.
Constitutional scholar and former law professor Rob Natelson, currently of the Independence Institute, addressed the Supreme Court’s ruling on ObamaCare at a June 29 rally in Denver:
In this related blog post Natelson describes why mandatory insurance is not a tax. Second, “The court failed to recognize that even if the penalty were a tax it would be a “direct” tax, and therefore subject to apportionment among the states.”
Read more: Defects in the Supremes’ holding that the Obamacare penalty is a “tax”.
But wait, there’s more! Rob also sat down w/ Justin Longo for an iVoices podcast: “Why ObamaCare’s Penalty is Not a Tax” [mp3]
Elaborating on whether mandatory insurance is a direct tax, Ilya Somin writes:
It’s worth noting that Chief Justice Roberts’ opinion only briefly discusses the crucial question of whether the mandate – if it is a tax at all – turns out to be an unconstitutional “direct tax.” The four justice dissent by Alito, Kennedy, Scalia and Thomas properly takes him to task for this. …
At National Review, Dave Kopel of the Independence Institute writes:
The weakest part of Chief Justice Roberts’s opinion is his assertion that the individual mandate merely “makes going without insurance just another thing the Government taxes, like buying gasoline or earning income.” To the contrary, earning income or buying a product is an activity that can constitutionally be subject to an “excise” tax. There is literally no constitutional or tax-law precedent for the notion that an individual can be subject to an excise tax merely for choosing not to buy a product.
Presidents and members of Congress take oaths to uphold the Constitution, and some of them take that oath seriously. Faithful to their oaths, a new Congress and a new president can repeal the individual mandate not only because it is bad policy, but also because they rightly consider it unconstitutional.
Read his whole post: What’s Next for the Opposition? – NRO Symposium – National Review Online.