HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Tuesday, November 27, 2012

ACA Litigation - The Gift that Keeps On Giving

With the holiday season upon us, many of us start thinking about gifts--both getting and receiving. Despite the apparent fiirm establishment of the Affordable Care Act as law with the reelection of President Obama and the Democratic gains in the Senate, opponents of the law continue to shower us with the gift of endless litigation about the law's constitutionality and legality.

In addition to the numerous employer lawsuits regarding the contraception coverage mandate that continue to work their way through the courts, there are at least four additional major challenges to provisions of the law, or the law itself. The Pacific Legal Foundation is supporting a lawsuit challenging the constitutionality of the ACA because the bill was first passed by the Senate, rather than the House of Representatives, violation of the Constitution's Origination Clause. Oklahoma is following the Cato Institute's playbook for taking down the ACA by arguing that in states where the federal government is running the health insurance exchanges mandated by the law, subsidies for individuals to purchase insurance on the exchanges are not authorized. Maine is leading the charge to dismantle Medicaid by challenging the ACA's "maintenance of effort" provision, which requires states to preserve their existing Medicaid programs until the ACA is fully implemented, unless the state certifies that it will have a budget deficit. And yesterday, Liberty University's lawsuit challenging the mandate that employers provide health insurance coverage as unconstitutional, and challenging the individual mandate on religious freedom grounds, was revived by the United States Supreme Court by being remanded to the 4th Circuit for a decision on the merits, (with no opposition from the Obama administration, which must think that this is an opportunity to make some favorable law). And a slew of proposed regulations implementing some major provisions of the ACA were recently promulgated. These are likely to provide additional fodder for legal challenges.

Should keep us busy for quite a while. Ho-Ho-Ho.


Cross-Posted on Healthy Interests

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