Adler: The ObamaCare Cases Keep Coming


By Hadley Heath

Don't miss Jonathan Adler's piece in National Review, "The Obamacare Cases Keep Coming."

As I've pointed out elsewhere on the Health Care Lawsuits blog, Adler aptly notes that many other (non-individual-mandate-related) constitutional challenges to ObamaCare are still in the works.

The contraception-mandate cases are not the only lawsuits in town. 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. IPAB is Congress’s effort to constrain the growth of Medicare costs by creating an independent agency empowered to issue self-executing limitations on which services the government will cover, and how much it will pay for them. IPAB’s purported independence has come at the cost of accountability. IPAB is not dependent upon annual appropriations from Congress, need not follow traditional administrative processes, and is not subject to judicial review. As if that were not enough, the PPACA provides that Congress may dissolve IPAB only if it follows a specified procedure during a seven-month period in 2017 — a statutory provision even the Obama administration has acknowledged could not hold up in court.

One point Adler makes that I've not heard from others: Many people have questioned the effectiveness of the individual mandate tax in incentivizing people to buy health insurance.  If insurers are required to sell a policy to anyone at anytime (guaranteed issue), and if the mandate tax is a much lower amount of money than the price of insurance, some individuals may reasonably choose to go uninsured, pay the mandate tax, and buy insurance only if they find themselves in a catastrophic sickness or injury.  To combat this, a future Congress might raise the dollar amount of the mandate tax, to put some teeth on it.  But if the amount of the individual mandate tax increases to become more significant, it might face another wave of litigation to question, yet again, if it is truly a tax or if it is a "penalty."

You should read Adler's full article here


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