Could Obamacare Go the Way of McCain-Feingold?
The "Affordable Care Act" might die a death of a thousand legal cuts.
Last June, upon learning that the Supreme Court had ruled Obamacare's individual mandate constitutional, many observers were forced to concur with the Dickens character who opined, "If the law supposes that… the law is an ass." Yet, the increasing number of anti-PPACA lawsuits that have been receiving serious attention from the courts suggests that the legal system may not be as irrational as it seemed when Chief Justice John Roberts began braying from the bench on June 28. If this seems Pollyannaish, consider the fate of McCain-Feingold.
In December of 2003, many were just as shocked and dismayed when the Supreme Court upheld the Bipartisan Campaign Reform Act (BCRA) as they were by the bizarre Obamacare decision. BCRA was an outrageous assault on the First Amendment, and yet the Court allowed most of its provisions to stand. Yet, anyone who had predicted that McCain-Feingold, as this abomination was more commonly known, would be moribund a mere six years and one month after the Court had ruled it constitutional would have been disregarded as hopelessly naïve.
Nonetheless, the opponents of McCain-Feingold launched a series of legal attacks that met with little success until 2007, when the Court ruled in FEC v. Wisconsin Right to Life. In that decision, the justices ruled unconstitutional the law's proscription against campaign ads mentioning candidates by name within a certain period prior to an election. Then, in 2008, the Court voided another crucial provision in Davis v. FEC. Finally, in early 2010, the Court delivered the coup de gras with its landmark ruling in Citizens United v. FEC.
Are the legal foes of Obamacare as numerous and determined as those of McCain-Feingold? The answer to that question is an unequivocal YES. Their numbers are greater, they are far better financed and they are demonstrably more dedicated to the cause. In fact, the dragon's teeth sown by the Court's misguided June ruling produced a spate of fresh troops to reinforce those already on the legal battlefield. There are now at least forty legal challenges to the law pending in federal courts involving its various provisions as well as its implementation.
Moreover, the Court just resurrected one of the original challenges to Obamacare by ordering the Fourth Circuit Court of Appeals to reconsider arguments on which it didn't deign to rule in Liberty University v. Geithner last year. The Fourth Circuit's pretext for not ruling on the University's claims was that the federal Anti-Injunction Act (AIA) barred the Appeals Court from ruling on the mandate. The Supreme Court's June ruling, however, held that the AIA doesn't apply. Thus, the Appeals Court must give Liberty another hearing.
Liberty's case differs from the lawsuits upon which SCOTUS ruled last summer in that the University challenged Obamacare for its unequal treatment of religious dissenters. As the original complaint states, "Liberty University is a Christian educational institution and Plaintiffs Waddell, Merrill and Helgeson are Christians, but none of the Plaintiffs is 'a member of a religious sect or adherent of established tenets or teachings' as described in Section 1501 and, therefore, all are prohibited from exercising a religious exemption under the Act."
Another form of religious meddling prompted by Obamacare, the HHS contraception mandate, has also spawned dozens of lawsuits. Among the Catholic organizations suing over this outrage are the Archdiocese of Washington, D.C., the Archdiocese of Atlanta, the Archdiocese of Miami, and the Archdiocese of Pittsburgh. This revolt also includes University of Notre Dame and, as the Becket Fund puts it, "hospitals, universities, businesses, schools, and people all speaking with one voice to affirm the freedom of religion guaranteed in the Constitution."
Among the businesses to which the Becket Fund refers are Hercules Industries, Weingartz Supply Company, and Tyndale House. And the courts are taking their challenges seriously. All three have won injunctions temporarily preventing the government from enforcing the HHS mandate. In July, Judge John Kane of the U.S. District Court for the District of Colorado enjoined the government on behalf of Hercules. And, within the past month, similar injunctions were issued protecting Weingartz and Tyndale from the depredations of HHS.
Another provision of Obamacare being challenged in court is the Independent Payment Advisory Board (IPAB). IPAB, you will recall, is Obamacare's rationing board. When PPACA was signed into law, Congress transferred much of its power to this committee, which will decide what services will be approved by Medicare and how much the providers of those services will be paid. The Goldwater Institute has filed a lawsuit, Coons v. Geithner, which challenges the constitutionality of IPAB under the separation of powers doctrine.
And, no list of Obamacare lawsuits would be complete without mentioning the Oklahoma lawsuit challenging the illegal IRS rule by which the Obama administration will attempt to funnel tax credits and subsidies through federally-created exchanges, despite the law's stipulation that such premium-assistance can only be offered via state-run exchanges. This litigation is, in many ways, the most important of all the lawsuits. Without its insurance exchanges, and the accompanying subsidies, Obamacare will crash and burn.
These lawsuits involving the illegal IRS rule, IPAB, the contraception mandate, religious discrimination, etc. by no means exhaust the list of Obamacare challenges. This should inspire hope. It took the good guys six years to bring down McCain-Feingold. With a little luck, and a lot of patience, the good guys could well prevail against Obamacare as well. One hopes, of course, that it will not take six years. Still, "the law's delay," as Hamlet lamented, must be endured unless the "bare bodkin" seems a better choice.
Unfortunately, an important factor in all of this involves the longevity of the remaining Supreme Court justices who heed the Constitution. If one or more of these is promoted to that great tribunal in the sky, and the president is able to appoint another administration lackey like Elena Kagan to the Court, Obamacare may well be safe. On the other hand, if any of the serious challenges to PPACA arrive on the docket before any of the "conservative" justices shuffles off this mortal coil, the legal system may yet prove itself not to be an ass after all.