Analysis Law and Policy

The Legal Challenge To Obamacare Nobody’s Talking About But Should

Jessica Mason Pieklo

Think conservatives have given up on their constitutional challenges to the individual mandate? Think again.

Republican House Speaker John Boehner may have conceded, momentarily at least, that as a result of the 2012 presidential elections, Obamacare is “law of the land,” but there’s no reason to believe this is actually the Republican position. In fact, we have at least one lawsuit in the pipeline that proves it’s not.

Last month the state of Oklahoma filed the first, in what we can expect to be a series of legal challenges over a key component in the implementation of health care reform. At issue in the lawsuit is whether or not the federal exchanges created in the health care reform can constitutionally give people subsidies to help pay for coverage. According to the legal challenge, the statutory language of the Affordable Care Act authorizes subsidies and credits for insurance only in state-run exchanges and any attempts by the federal government to administer its own subsidies are unconstitutional.

Oklahoma, like a host of states governed by conservatives with a pathological opposition to Obamacare, has refused to implement its own exchange. Should those states refuse to set up exchanges by January 2014 the law calls for the federal Department of Health and Human Services to establish a state-based exchange for them. As part of the creation of those federal exchanges the IRS implemented a rule that  in essence, authorizes the IRS to distribute tax credits and subsidies through those federally-operated health insurance exchanges in those states that refuse to establish their own exchanges.

But Oklahoma argues that the Obama administration can’t do that. Instead, they argue, if the federal government comes in and sets up an exchange because a recalcitrant state refuses to participate, those exchanges can’t offer subsidies for insurance coverage. Should the court agree this would functionally leave no means of affordable coverage in most of the red states that need it most.

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Add this lawsuit to the approximately 34 other lawsuits challenging the contraception mandate and the conservative strategy becomes clear. As is the case with abortion rights, having lost on the ultimate issue of whether or not the law is constitutional, conservatives have opted for widespread and multi-faceted challenges designed to chip away at the core protections until they are rendered effectively meaningless.

What that means as we move back from campaigning to governing is that Speaker Boehner and other conservatives can pledge whatever they’d like concerning health care reform. The minute they stop filing lawsuits challenging the constitutionality of its key components we’ll know they’ve actually accepted health care reform is here to stay. 

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