What Legal Challenges Move Forward?


By Hadley Heath

The Supreme Court has ruled, but the fat lady has not sung.  Many of the legal challenges we track here at HealthCareLawsuits.org did not center on the individual mandate, and so they move forward.

Here are three major highlights for future challenges to ObamaCare's constitutionality:

1. IPAB - the Independent Payment Advisory Board.  

Sarah Palin famously referred to the IPAB as a "death panel," and it seems the board's first victim, if it is implemented, will be the U.S. Constitution.  Here are the facts about IPAB: It will have 15 members.  There is no requirement that any of these members be physicians.  These members will be political appointees of the President, and will serve 6 year terms.  Each year the board will make recommendations for cuts to Medicare programs.  These recommendations become law, unless Congress votes with a supermajority in both houses to stop the IPAB plan and replace it with equal cuts.

Sounds... like the IPAB is a new legislative body, right?  Pretty powerful.  Well, the folks at the Goldwater Institute thought so too, and in 2010 they filed a complaint challenging the constitutionality of this provision.  Read more here.

2. Religious Liberty v. Contraception Mandate

In 2012, a slew of new cases arrived on the scene in response to an HHS regulation mandating that all employers offer insurance coverage contraceptive services, including sterilization, and even the morning-after and week-after pills.  The Becket Fund is litigating a few of the cases, and keeping track of all of them here.

3. Employer mandate, Federal exchanges, and IRS regulations

The Florida case started out with a challenge to the federal exchanges.  That challenge failed, but some legal scholars argued that Florida just wasn't doing it right.  Now it seems there may be a new legal opening for exchange opponents, as Michael Cannon and Jonathan Adler of the Cato Institute discuss in a new policy paper (to be released Monday).  Essentially it boils down to this: The Affordable Care Act didn't give the IRS the authority to deliver subsidies or collect employer penalties (taxes?) through federally-operated exchanges.  To remedy the situation, the IRS issued a rule saying that, nevermind the law, they have that authority anyway.  Here's a New York Times article about it. 

These are really just the top three legal issues that I believe ObamaCare will face in coming years.  But, since so much of the law is being written through legislation, who knows what other Constitutional violations could be committed?  This is the natural result when government goes too far.


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