What to Make of All the Obamacare Litigation?

If Helen of Troy’s was the face that launched 1000 ships, is Obamacare the law that launches 1000 lawsuits?

Helen of Troy…who, by the way, caused an awful lot of destruction launching those 1,000 ships…

Thus far we’ve seen litigation over the constitutionality of the individual mandate, mandatory Medicaid expansion, birth control coverage requirements, and now the legality of subsidies provided to people who purchased insurance through Healthcare.gov — the federally-operated exchange.  And, if John Boehner can be believed, we’re likely about to see further litigation on the issue of selective executive enforcement.

For lawyers, it’s the gift that keeps on giving!

All kidding aside, the Obamacare cases have been fascinating to follow, and the arguments made and decisions rendered by the Court have all been significant and important.  In many ways the cases strike at the heart of the relationship of citizens with their government:  Can the national government force you, on penalty of taxation, to purchase goods and services?   Under what circumstances can it commandeer state governments to do indirectly what it can’t do directly?  To what extent can an executive relieve Congress of accountability for a law by rewriting it through selective enforcement?

None of these issues are new.  Most have been around since America’s founding, and the Supreme Court has weighed in on most, if not all, before.

But the fact that they have been generated so quickly at the national level by one law of great historical significance — and are making their way consistently to the Supreme Court — is somewhat unique, and worth pausing a minute to ponder.

Right now the Obama administration has a mixed record on Obamacare at the Supreme Court.  The individual mandate was upheld, but mandatory Medicaid expansion was rendered permissive.  The Hobby Lobby case made clear that religious exemptions to the ACA’s mandatory coverage provisions are available for employers at least under some circumstances.  The Supreme Court has yet to weigh in on the subsidy issue presented in the Halbig and associated Fourth Circuit case, but given the urgency of resolving the subsidy question and the split rulings, it seems quite likely that the Court will take that case as well.  And the case regarding selective enforcement threatened by Boehner is quite intriguing, especially given recent Supreme Court decisions, which seem to take a skeptical view of unilateral executive authority.

Although it’s far from a guarantee (and perhaps not even likely), but if the Obama administration were to lose either Halbig or the Boehner case — or, heaven forbid, both! — it would constitute an extraordinary rebuke to the federal government over the issue of healthcare.  A rebuke that the Supreme Court was unwilling to deliver over the individual mandate itself, and is only rarely willing to deliver to the federal government at all.

In fact, the only time I can really think of such a rebuke (at least in recent history) is during the early years of the New Deal, when a conservative dominated Supreme Court routinely struck down Franklin Roosevelt’s legislation on grounds that it interfered with individual economic freedom.  Roosevelt’s frustration at having his ambitious agenda hampered by the Supreme Court led him to propose expanding the Court to get the necessary votes to overcome constitutional challenges.  As a result of Roosevelt’s plans, one of the justices in the conservative majority switched his vote, and, since that time, the rule has been that the Court accords substantial deference to federal law.

There have been other serious and substantial rebukes by the Supreme Court — most notably in the context of civil rights — but those have generally been to state, rather than federal, law.  In fact, over the last 60 years, the Supreme Court has been increasingly active in striking down state laws and consistently deferent to federal legislation — with some exceptions, obviously.  But — limited exceptions notwithstanding — the fact that what we’re seeing so far with Obamacare runs contrary to a nearly century long trend is what makes the potential rebuke of Obamacare and national healthcare unique.  It would be a judicial censor of Congress and the President the likes of which we haven’t seen since the Great Depression.

And that — whether you believe all this litigation is the result of executive overreach or an activist conservative Court — makes it worth following closely.

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