The Supreme Court's 2012 decision upholding the Affordable Care Act's individual mandate stunned the conservative legal establishment and seemed to ensure the law's survival, given that Republicans couldn't enact a legislative repeal. But a cadre of conservative lawyers and state officials formulated a new plan of attack, and they're trying again to push the health care law toward what they hope will be a more receptive Supreme Court.
Their lawsuits aim to eliminate billions of dollars in federal subsidies designed to help millions of people buy health insurance. The subsidies are a critical component of the Affordable Care Act: They are by far its most expensive provision, its strongest incentive for people to buy coverage, and the centerpiece of its goal of making health insurance affordable. The law would be crippled without them. And that's exactly what conservatives want to accomplish. A federal court in Washington heard oral arguments over the issue earlier this week, and a similar case is pending in Virginia.
Liberals say the latest challenge is weak on its merits. But they feel they lost the public-relations battle over the individual mandate and don't want to repeat that mistake by brushing off cases about the law's subsidies. "I take it seriously," said Simon Lazarus, senior counsel at the Constitutional Accountability Center, who supports the Affordable Care Act. "They have a strategy, and the strategy is to get this case up to the Supreme Court and hope they have five conservative justices who will see this is a Bush v. Gore moment."