Court rulings involving Obamacare are beginning to work their way through the legal and political systems. This is likely the start of more intensive rounds of litigation and debate.
On the abortion-inducing contraception mandate, the administration reportedly is giving up, according to The Hill:
The White House is developing a workaround to let religious nonprofits opt out of ObamaCare’s contraception mandate without filing a form they say violates their religious beliefs, according to a senior administration official.
Religious nonprofits that do not want to provide free contraception to their workers can now opt out by submitting a Form 700 stating their religious objection to contraception. Insurance companies can then use the form to provide free contraception to workers and get tax credits from the government in return.
However, some religious organizations have objected to filling out the form because they argue it amounts to participation in providing birth control.
On Tuesday, a senior administration official said they are working on an alternative option for religious nonprofits that do not want to fill out the document and will issue a federal regulation in the next month.
This is a reminder that on these issues the principle is far less important to the administration than creating a faux political issue in its “war on women” campaign.
Then there is the issue of the exchange subsidies. Jonathan Adler and Michael Cannon write:
The Patient Protection and Affordable Care Act directs states to establish “exchanges” to regulate the sale of health insurance. If a state declines to do so, as 36 states have, the health-care law directs the federal government to “establish and operate such Exchange within the State.” But here’s the rub: Certain taxpayers can receive subsidized coverage, the law says, if they enroll “through an Exchange established by the State.” The law nowhere authorizes subsidies through exchanges established by the federal government.
This is common practice. The Medicaid program has operated on the same principle for nearly 50 years. Only residents of cooperating states get assistance. When Congress debated health reform in 2009, both Republicans and Democrats introduced legislation conditioning health-insurance subsidies on states establishing exchanges. Senate Democrats advanced two leading health-care bills. Both allowed federal exchanges to operate without subsidies. One of them became law.
In other words, it’s not a bad case for conservatives at all. Moreover, it highlights that the president and Congress broke their pledge not to tax the middle class. (“Subsidies for policies purchased on an exchange automatically trigger taxes against both employers and individuals who do not purchase the mandated level of coverage. So when the president issued those subsidies in states where he had no authority to do so, he also imposed, on millions of employers and individuals, taxes that no Congress ever authorized.”)
The real intrigue will start if and when the case gets to the Supreme Court — in 2015 or 2016, that much closer to the presidential election. It will also give Chief Justice John Roberts (who switched sides to join the four liberals on a weak taxation theory in order to keep the law in place) a second bite at the apple. John Yoo frames it this way:
Roberts need not accept the invitation to creatively rewrite an act of Congress to improve it, but instead keep to a judge’s proper role of only interpreting the law, not making it. The same forces that pressured him to uphold Obamacare two years ago will no doubt reappear — recall President Obama’s State of the Union attack on the Court, Democratic senators launching preemptive assaults on Roberts, and media and academic criticism of the Court before the decision even came out. If Congress wrote an inadequate, misguided, or inefficient law, it is Congress’s fault. It is Congress’s responsibility under our Constitution to repair the law. By rewriting the law instead, Chief Justice Roberts would be undermining the accountability that lies at the root of our democratic system, for the voters would not know whether to hold their legislators responsible for the errors of Obamacare. In Sebelius two years ago, the position of judicial restraint may have militated in favor of upholding Obamacare despite its many constitutional defects. But here, Roberts need not exercise the awesome power of judicial review — the position of restraint now simply requires the law to go forward as written. This case will give the Chief Justice the opportunity to atone for his judicial sin of two years ago. Not many judges have the chance to make up for the mistakes of the past. Let’s hope he takes advantage of the opportunity.
The argument against a judicial “fix” is even stronger when one considers the Supreme Court already rewrote the Medicaid provision to create an opt out. The result — a large group of uninsured people below poverty but not covered by Medicaid or the exchange subsidies — was certainly not what Congress intended and has had serious consequences. Might this dissuade the chief justice from “fixing” the law again?
Perhaps, but conservatives would be foolish to anticipate what the court might do this time around. For now the impact of the split decisions in the circuit courts is a political one — to underscore several powerful arguments against Obamacare and those who pushed it through the Senate by a questionable procedure: Few if any Dems knew what they were voting for, and it therefore was an act of extreme recklessness. Talk about putting politics above good policy. Second, the Senate in Democratic hands could have voted on a lot of “fixes” but hasn’t, so how credible is the claim that all the law needs is a few tweaks? Liberals like to point to polls showing voters favor some fixes, but they’ve never let on what those might be. And, finally, since we are talking about subsidies the cases emphasize that the law is less about available health care than about income redistribution. It was sold, however, as a win for everyone. It wasn’t though, as large groups of voters (with canceled policies, reduced work hours, fewer medical device start-ups, loss of their doctor, Medicare Advantage cuts, etc.) found out the hard way.
Ultimately, then, the court cases serve to give Republicans a new opportunity to hammer home an issue that is very bad for their opponents. If they don’t make use of it, shame on them.