A Loophole Puts Obamacare Back on the Line

Laura Joszt

The state of Obamacare was a big unknown before the 2012 presidential election. But when President Barack Obama was re-elected, the health care reform law was considered safe, right? Not quite, according to a challenge to the Supreme Court's ruling.

The state of Obamacare was a big unknown before the 2012 presidential election. But when President Barack Obama was re-elected, the health care reform law was considered safe, right? Not quite, according to a challenge to the Supreme Court’s ruling that the Affordable Care Act (ACA) and the individual mandate was legal.

When the Supreme Court upheld the ACA, Chief Justice Roberts wrote in the controlling opinion that the law was placing a tax on those who lawfully choose not to buy insurance. However, there might be a loophole that could be the end of Obamcare.

The right-leaning Pacific Legal Foundation is challenging that the ACA’s insurance mandate could be upheld by the Supreme Court under Congress’ power of taxation. (Emphasis my own.)

“The holding raises new issues that the parties did not argue or brief, and that the Supreme Court had no occasion to consider. Among those issues is whether the tax is lawful under the Origination Clause of the Constitution, which requires all revenue-raising bills to originate in the House of Representatives.”

Obamacare originated in the Senate, according to Pacific Legal, thus the Court should not have upheld it. The reason this challenge seems so late to the party is because it could only have been filed after the Supreme Court ruling, which occurred on the last day of the Court’s term.

However, the law can be argued a multitude of ways. According to Business Insider, a Georgetown Law School professor believes that Pacific Legal might be successful, while a Yale professor of constitutional law doesn’t agree.

“Georgetown Law School Professor Randy Barnett thinks Pacific will be successful, contending the Senate used a ‘shell bill procedure’ to ‘scoop out’ the contents of a House bill and insert its own language.

“But that kind of ‘shell bill procedure’ has been used a number of times to enact taxes, Jack Balkin, professor of constitutional law at Yale, wrote in The Atlantic.”

The case is under consideration in the D.C. District Court.

Read more:

A Technicality Could Unravel Obamacare - Business Insider

Pacific Legal Foundation's filing