A Guide to the Remaining Legal Arguments Against Obamacare

On Tuesday, the DC Circuit of Appeals will hear oral arguments for yet another case challenging the legality of the Affordable Care Act, according to The New York Times. This time the argument is that, due to some poor wording in the law, the Internal Revenue Service doesn't have the authority to grant subsidies in states covered by the federal exchange.

On Tuesday, the DC Circuit of Appeals will hear oral arguments for yet another case challenging the legality of the Affordable Care Act, according to The New York Times. This time the argument is that, due to some poor wording in the law, the Internal Revenue Service doesn't have the authority to grant subsidies in states covered by the federal exchange. Depending on one's personal and political feelings, this is either another conservative attack to repeal the law or an attempt to stop the government from overstepping its boundaries... with a legal attack to repeal the law.

But Obamacare detractors aren't putting all their eggs in one court case basket. Last year's Supreme Court case, in which Obamacare's individual mandate was upheld as a tax, wasn't nearly the end of the law's legal trouble. There are currently several arguments against the legality of Obamacare, and there will be for several years. As Jonathan Adler, a law professor and co-writer of one of the legal arguments, put it, "among critics of the law there is a feeling that the law doesn’t have the same legitimacy as a law that passed with bipartisan support." It's a lot easier to find the motivation to challenge a law that's been passed by Congress, signed by the president and upheld by the highest court in the nation if you don't really feel like it's actually the law. And so, here are the main legal arguments against the Affordable Care Act:

Federal exchange states aren't eligible for tax subsidies

As we explained earlier this year, Halbig v. Sebelius is a case launched by conservative small business owners in states using the federal exchange. They argue that, because the Affordable Care Act only specifically mentions subsidies for exchanges "established by the state," the federal exchange can't grant subsidies. And if they can't get subsidies, then the insurance becomes unaffordable, so they want the court to block the IRS from implementing the law. The government argues that, obviously, they meant for everyone to get subsidies, and the case is ignoring all the prep work the administration has done to provide subsidies in all states.

Since subsidies are the main appeal of the law — for many, that's the "affordable" part — taking them away would hit hard. And as Mother Jones notes, there's a chance they'll get their wish. "The case seems destined for the Supreme Court, where a conservative majority is already hostile to Obamacare," writes Mother Jones' Stephanie Mencimer.

Tax laws should be introduced in the House, not the Senate

In 2010 the Pacific Legal Foundation filed a case with the DC federal district court on behalf of Mark Sissel, an Iowa business owner. The argument was that Obamacare violated the Origination Clause of the Constitution, which says that bills for raising revenue have to originate in the House and basically piggy backs off the conservative talking point that Obamacare is a tax, not a law. Here's how conservative Breitbart.com described the case:

The Origination Clause of the Constitution, Article 1, Section 7, Clause 1 states "All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills." Not a word of the Affordable Care Act originated in the House of Representatives. Instead, using a legislative trick, Senate Majority Leader Harry Reid (D-NV) took an innocuous bill that had passed the House unanimously ... removed every word of its text following the first sentence, and replaced it with the Affordable Care Act language.

According to that argument, the individual mandate is a revenue raising tax that invalidates the law. The court struck down the Origination Clause argument in June with the following argument, summarized by Lexology:

Even though the Court recognized that the individual mandate would raise revenues through shared responsibility payments, it stated that any revenue created was “incidental” to the primary goal of expanding insurance coverage (and, thus, the mandate was not a bill for raising revenue).  Additionally, as the individual mandate was an amendment to a bill originated in the House (i.e., H.R. 3590), the complaint could not meet the second prong of an Origination Clause claim.

The Pacific Legal Foundation has filed an appeal.

Contraceptives coverage defies religious freedom

Last week the Supreme Court agreed to hear Hobby Lobby's controversial case arguing that requiring businesses to cover contraceptives violates their freedom of religion right. And as we explained last month, a DC Circuit Court upheld a similar legal challenge by a pair of devout Roman Catholic business owners. Unlike the previously mentioned cases, the contraceptives mandate doesn't make or break the law, but it's a blow to women and women's rights activists.

If religious employers are exempt, nonprofits like schools should be as well

On Tuesday, the University of Notre Dame re-submitted a lawsuit over Obamacare that was originally rejected in January, according to The Hill. While the law excuses religious institutions from the contraceptives mandate, it's unclear what happens when a school self-insures and pays its employees' medical expenses like Notre Dame.

Obama might be "rewriting his own law"

As some politicians on both sides of the aisle have said, the constitutional justification for the president's delays of enrollment deadlines and his fix for dropped plans aren't completely clear. Detractors like House Speaker John Boehner are doubtful, though White House officials argue "administrative discretion."  Technically this isn't a legal case, but the House Judiciary Committee will review those arguments, as well as the legal case against subsidies, according to The New York Times.