The Right Strikes Back: A New Legal Challenge for Obamacare

In Rainey, the Court made clear that it would not inquire into the germaneness of the Senate's amendments. Quoting a lower court decision, it explained that "the section was proposed by the Senate as an amendment to a bill for raising revenue which originated in the House. That is sufficient. Having become an enrolled and duly authenticated act of Congress, it is not for this court to determine whether the amendment was or was not outside the purposes of the original bill."

In addition to all these problems with the PLF's challenge, there is also the difficulty that the reconciliation bill, which started in the House, amended the individual mandate, and changed the tax. The PLF must explain why the reconciliation measure doesn't survive as valid law.

If the Court follows its existing precedents, the new challenge to the health care bill is unlikely to succeed. But of course, that's what people said about the Commerce Clause arguments in the last challenge. And five Justices eventually bought those arguments, even though the Court as a whole upheld the individual mandate as a tax.

In a previous essay for The Atlantic, I noted that even if a legal argument is currently "off the wall," it may nevertheless become plausible if enough prominent people get behind it and vouch for it. Support by major political parties is probably the most important factor in quickly moving arguments from "off the wall" to "on the wall." The challengers' arguments in NFIB v. Sebelius got as far as they did because the unconstitutionality of Obamacare became virtually the official position of the Republican Party, and Republican politicians and affiliated media pushed the challengers' claims over and over again. Repeated arguments by conservative politicians, media, and intelligentsia, in turn, probably affected the views of Republican-appointed judges and justices about how seriously to take the arguments.

Members of the media will no doubt ask legal scholars (such as yours truly) whether the PLF's new constitutional challenge to Obamacare is likely to succeed on the merits. I've just given you my answer: not under existing law.

But if reporters have been paying attention to the events of the last two years, they should know that, at least where health care reform is concerned, the considered views of legal scholars are not the most important ones. The real question to ask is whether Republican politicians, right-wing talk radio, and Fox News will get behind the new challenge with the same degree of enthusiasm they had for the first legal assault on Obamacare. If they do, then the mainstream media will no doubt cover the controversy as it did before. If a conservative district court judge takes the arguments seriously, the game is on once more. And then, perhaps, Chief Justice Roberts, given a second chance, will change his mind -- again. (In 1990, Justice Scalia wrote a concurrence in which he argued that most Origination Clause challenges should be dismissed; but as we learned in the health care litigation, he is not likely to feel bound by his previous opinions.)

Of course, it is also possible that the Supreme Court will not want to take up another challenge to the Affordable Care Act so soon after the first one. Nevertheless, in the past the Court has sometimes declared unconstitutional statutes or policies it had previously upheld when a new challenge was posed under a different legal theory. For example, in 1980, the Supreme Court held that criminal trials had to be held open to the public under the First Amendment after rejecting a similar challenge a year before made under the Sixth Amendment.

Republican politicians might be ready for a new round of constitutional challenges to the Affordable Care Act, especially if they lose the presidential election, if the health care bill remains unpopular, and if they believe that eliminating Obamacare is their best ticket for regaining control of the Senate and the White House. On the other hand, if the public starts to like the health care law's benefits, Republicans might conclude that a second all-out assault is not in their best interests. They may decide to live with Obamacare, just as previous generations of Republican politicians eventually learned to live with the New Deal, Social Security, Medicare, and other social insurance programs. We won't know for certain until well after the election.

But even if the mainstream of the Republican Party does not support them, some movement conservatives will likely press onwards. They will bring challenge after challenge to Obamacare -- until they run out of plaintiffs, or money, or both -- because they genuinely believe that health care reform is both unconstitutional and a grave threat to human liberty. So if the Origination Clause challenge fails, expect to see future challenges based on other parts of the Constitution. And it won't matter one bit whether or not most law professors think these challenges are frivolous. (There are already a number of challenges to the Obama Administration's contraceptive mandate based on the Free Exercise Clause and the Religious Freedom Restoration Act. On the merits, these theories are much more serious than the Origination Clause challenge, but they do not threaten the entire health care act.)

And once the constitutional challenges run out, expect challenges to the implementation of the Affordable Care Act based on statutory interpretation and administrative law. (Several of these are either in the planning stages or have already begun.) If there's a way to gum up the works of health care reform, you can expect that opponents of Obamacare will try it. The constitutional and legal struggle over health care reform isn't over. We have only completed round one.

Presented by

Jack M. Balkin is the Knight Professor of Constitutional Law and the First Amendment at Yale Law School, and the founder and director of Yale's Information Society Project.

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