COMMENTARY: ObamaCare’s fate? Legal challenges and ultimate reversal
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Published: 26-Jul-2013

OKLAHOMA CITY – Early in American legal history, Chief Justice John Marshall solidified the role of judicial review in the landmark case of “Marbury v. Madison.”

Whatever else analysts might conclude about last year's High Court ruling in the “ObamaCare” case, no one is saying it solidified anything.

In the new edition of the Texas Review of Law and Politics, Timothy Sandefur of the Pacific Legal Foundation writes that Marshall's decision came to be considered a masterpiece because it asserted a constitutional power for the High Court, “while tactfully withdrawing from a political dispute in which the judges were ill-suited to defend themselves.”

Further, the decision was unanimous and persuasive.

Sandefur argues that NFIB v. Sebelius, last year's confusing edict upholding the ACA, was “an illogical opinion that withdraws the court from its proper constitutional role, and does so solely as a function of political considerations.” A narrow majority of the justices wanted to find a way to uphold the ACA in order to avoid political fallout – so they did so.

The opinion was not and is not persuasive as constitutional law, dramatically illustrated in the chopped-up 5-4 majority. Legal challenges to one or more aspect of the ACA's mandates or framework aim, for the most part, to undo the legislation, not merely to manage its impact.

Sandefur dissects last year's ruling, focusing on how the ACA “changed its spots,” with penalties that morphed into taxes – which did not originate in the House of Representatives (as required in the Constitution).

Of the more limited challenges, the state of Maine, in “Mayhew v. Sebelius,” is seeking to protect its right or prerogative to limit Medicaid eligibility. Maine's motivations are different than those of many other foes of the ACA, and are rooted in fiscal prudence.

Four weeks ago, the state argued in its legal brief, “Congress took a voluntary program in which Maine agreed to freeze its indisputably generous standards for two years in return for additional federal funds, and Congress then unilaterally froze those standards for up to an additional nine years without the additional federal funds. If Maine disagrees and chooses not to maintain its generous standards, the federal government has the authority to cease existing Medicaid funding – over 20 percent of the state budget.”

Which brings us to Oklahoma, which is some respects has become ground zero in the push back. Oklahoma contends, on the basis of both the High Court ruling and the language of the ACA, that the feds do NOT have the authority to treat Maine or Oklahoma as the equivalent of an administrative subset of the U.S. Department of Health and Human Services.

Last fall, state Attorney General Scott Pruitt took to a new level his meticulous, lawyerly and effective campaign against the edifice of the ACA.

Pruitt and his top lawyer, solicitor Patrick Wyrick, filed in the eastern district federal court the ObamaCare challenge that could be the clincher. In “Pruitt v. Sebelius,” they have argued against the Internal Revenue Service rule punishing “large employers” – including governments (state and local) with penalties if health care exchanges are not created within a state.

For the feds, the trouble is that 34 of the states have not created such exchanges. The option to not create exchanges is protected both in the language of ACA itself and the otherwise tortured reasoning of the U.S. Supreme Court in last year's decision.

In a July 24 webinar with reporters for the Watchdog.org network, Michael Cannon of the Cato Institute said “a lot of credit” should go to Pruitt and Wyrick for “have the foresight and courage to get into the weeds” on ACA. Their arguments are centered on the state health exchange issue, but are not limited to that. The argumentation is often technical but ultimately reads like reasoned law – of the type that will not only embolden conservative jurists but might also provide a legal path persuasive to others.

The Oklahoma legal team moved rapidly, early this month, to incorporate into their arguments both the administration's delay in the employer mandate and the victory of Liberty University, in a Virginia case, allowing the independent Baptist school to seek an injunction against the federal law. 

And, speaking of injunctions, the Evangelical Christian Green family of Oklahoma City, owners of the Hobby Lobby retail stores, secured a preliminary injunction against enforcement of the ACA, after previously getting a favorable Tenth Circuit Court ruling that seemed overtly sympathetic. The family's lawyers said the ruling meant “the tide has turned” against the law. 

In the Watchdog webinar, Cannon commented on the Hobby Lobby case, saying the company and its owners deserve to win, on the basis of the Religious Freedom Restoration Act, the First Amendment, or both. “The administration overreached” in its now-infamous Health and Human Services mandate that insurance plans include coverage of abortafacient drugs and contraceptives, he said.

In a striking sentence, he said the effect of the contraceptive mandate, for many people of faith, is they are being told: “Go to hell, or pay a fine.”

Cannon, author of “50 Vetoes: How States Can Stop the Obama Health Care Law,” is pressing reporters and legal analysts to focus on self-contradictory provisions within “ObamaCare” and the attempts to enforce it, particularly the simple shocking truth that three-fourths of the American states have not created health exchanges – a required first step to establish a federal enforcement mechanism.

In the end, the Affordable Care Act will fall in one or more of the lawsuits outlined above, or perhaps due to some case or controversy not yet on the scene.

NFIB v. Sebelius will eventually be seen as a stop-gap that put ACA on life support, but one day the plug will be pulled.

Thus, in the long run the fate of the NFIB case will be completely different than that of either Marbury or Roe v. Wade, the still controversial abortion decision of 1971. The former is settled law, for good or ill (Marshall's contemporary, Joseph Story, had some good arguments about the limits of judicial review). The latter can't be called settled law, but it is controlling law in that its fundamentals remain in force.

Roe v. Wade, with all its faults, elaborated from the Constitution's “zones of privacy” (in Robert Bork's memorable phrase) a liberty interest that has appealed to just enough jurists and lawmakers that it has survived – beaten and bruised, weakened and ameliorated – but still a precedent.

NFIB v. Sebelius? It asserts federal power and coerces commerce, it invades personal liberty in the name of personal security. Even if somehow all the existing legal challenges to the ACA collapse, these anti-liberty and anti-federalist assertions will not stand.

However, the good news is that one or more of the rising cases challenging the ACA will likely prevail.

That result will restore to the People an ability to decide things for themselves, and reopen for state governments an ability to fashion health care policy suitable to the interests and aspirations of those who live in places like Oklahoma and Maine – who have no desire to emulate the ongoing demise of both liberty and general economic dynamism dictated from places like Washington, D.C.

You may contact Patrick B. McGuigan, Oklahoma City bureau chief for the Watchdog.org network, at Patrick@capitolbeatok.com and follow us on Twitter: @capitolbeatok.

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