Four Cases Making Way Through Courts That Might Wind Up Overturning Obamacare

It'll take a while to get a ruling on these cases, and then come appeals, but it's something to keep your eye on.

If the law known as Obamacare gets struck down in the latest court challenge, the victors will thank a Hudson resident and Case Western Reserve University law professor who discovered what the law's critics say is a major flaw.

Jonathan Adler, 44, says he didn't even appreciate initially how significant his discovery might be. He thought it was an interesting bit of legal arcana, worthy of scholarship. But his analysis of the Affordable Care Act, or ACA, has led to four pending cases in federal courts, two likely to be decided within months, that offer ACA opponents their best chance of gutting the law.

Oral arguments were heard in one of the cases, in U.S. District Court in Washington, DC, on Tuesday.

Adler, a Case law professor since 2001, pored over the ACA after it passed in 2010 and found this: Congress created a system for providing tax subsidies and penalties in order to give incentives for people to buy health insurance or for employers to provide it. States were supposed to create new agencies that would offer online insurance-shopping options, and states would tie into a federal tax system to dole out the subsidies and assess the penalties.

But the ACA made clear, Adler says, that the subsidies were to be used in these new state marketplaces, or "exchanges." There is no record, he says, that shows Congress directed the subsidies to what has since evolved: a large, federally run, health-policy shopping exchange. When the subsidies are mentioned in the law, Adler says, it is always and only in the context of state exchanges.

The IRS fabricated a regulation that stated, basically, that no matter what the law itself says, they're providing subsidies through the federal exchanges anyway.

These are Gabe's favorite dark-horse candidates for ending Obamacare in a year or two. He mentioned in the podcast that he'd watched arguments in court, and the Administration's line seemed to be that it didn't matter what the law said -- Obamacare needs this.

Apparently Obamacare contains its own Necessary and Proper Clause amid its penumbras and emanations.

posted by Ace at 03:48 PM

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