Obamacare’s Biggest Legal Threat

In Halbig, the courts may finally force Obama to work with Congress if he wants to rewrite the law.

The legal positions of President Obama’s Justice Department have been slapped down unanimously a remarkable 13 times in the Supreme Court in the last two years. Over and over, even Obama’s own two appointees to the court — Sonia Sotomayor and ElenaKagan — have held that the president has exceeded his authority and violated the separation of powers.This coming week, we could see the second-highest court in the land rule that the administration broke the law in enforcing a key provision of Obamacare, calling into question once again Obama’s fidelity to the Constitution — and further endangering his signature program.

The case of Halbig v. Sebelius (since renamed Halbig v. Burwell, for the current HHS secretary) was argued before a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit Court in March. It attacks the central nervous system of Obamacare — the government exchanges that were set up to subsidize health insurance for low-income consumers. If the Supreme Court ultimately finds that the Obama administration violated the law in doling out those subsidies, it could force a wholesale revision of Obamacare. In January, The Hill quoted a key Obamacare supporter as saying that Halbig was “probably the most significant existential threat to the Affordable Care Act.” Jonathan Turley, a noted liberal constitutional-law expert at George Washington Law School, recently agreed, writing in the Los Angeles Times that Halbig “could leave Obamacare on life support.”

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