A new challenge to Obamacare has even its most ardent supporters nervous.
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While the stakes are not as high in the case of United States House of Representatives v. Burwell as they were in the two prior challenges to the Affordable Care Act (ACA), ultimately decided by the U.S. Supreme Court, were this latest ACA implementation challenge to eventually succeed, quick congressional action will be required to fix what has become a very expensive issue.
This case raises two legal objections to certain aspects of recent ACA implementation. The first is that the Obama administration does not currently have the authority to request and spend U.S. Treasury funds to pay for subsidies to insurance companies to assist them in offsetting the cost of specific mandates imposed upon them under the ACA. The second is that Treasury Secretary Jack Lew did not have authority to extend the start date for the ACA’s employer mandate. Both objections raise constitutional questions.
On Oct. 19, 2015, U.S. District Court Judge Rosemary Collyer denied the government’s request to immediately appeal her Sept. 9 decision on a motion to dismiss that had been filed by the government.
In its motion to dismiss, the government essentially argued that the U.S. House of Representatives does not have legal standing to bring these specific claims objecting to the administration’s implementation of the ACA and that even if taken as true, the facts contained in the House’s complaint do not set forth any legally valid claims.
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In her 43-page opinion and applying an “especially rigorous” analysis-as required by case law-Judge Collyer denied the government’s motion with respect to the House’s claims regarding the administration’s allegedly unauthorized recent use of Treasury funds to pay for the insurance company subsidies, but granted the government’s motion on the House’s claims about the extension of the employer mandate.
Judge Collyer’s decision means that the House’s claims concerning the funding of the ACA insurance company subsidies will proceed to a hearing and decision on the merits prior to any appeal to the D.C. Circuit Court of Appeals. Judge Collyer’s decision on these claims will likely come out in early 2016, an important presidential and congressional election year.
While not yet garnering the national media attention received by the two prior challenges heard by the Supreme Court, this case has raised concerns by those who support the ACA. The likely reason is that among its objections to insurance company subsidies, the House asserts that the administration’s recent attempts to fund these subsidies violates one of the most fundamental constitutional separation of powers principles: that only Congress has the power to authorize and ultimately appropriate public monies. Once the law that had temporarily authorized and appropriated those funds expired in 2013, the House argues, the administration has been constitutionally prohibited from allowing the Treasury from funding the subsidies.
Were the House to ultimately succeed, the ACA would still fundamentally remain intact. However, if the Supreme Court were to hold that only Congress has the ability to authorize and appropriate these funds, then Congress will have decide how to pay for these subsidies, now running in the billions of dollars, as reported in “Health Affairs Blog.”
While key aspects of the ACA have survived two prior Supreme Court challenges, those hotly debated decisions are thought by many to have been more based on practicality than legal doctrine and have prompted even some members of the Court itself to question whether they were guided by an overriding principle to preserve the ACA.
This case, however, goes to a much larger question than the preservation of the ACA: it goes to a fundamental constitutional separation of powers principle: Congress’ constitutional authority to authorize and appropriate public monies. Therefore, the outcome may not be the same.
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