Obamacare’s Biggest Legal Threat | National Review Online

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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 Elena Kagan — 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.”

President Obama has increasingly exasperated both judges and constitutional scholars with his boasts about going around Congress when it doesn’t give him what he wants. “I’ve got a pen, and I’ve got a phone,” he told reporters before his first Cabinet meeting of 2014, in January. That attitude has prompted his decision to rewrite Obamacare at least 23 times without any involvement of Congress. If Obama’s actions in Halbig are found unconstitutional, then other parts of Obamacare will become more vulnerable to legal challenge, and Congress will probably have a much bigger say in rewriting or reversing aspects of the law.

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