Another court­room bat­tle loom­ing over Oba­macare

Modern Healthcare - - THE WEEK AHEAD - —Lisa Schencker

Repub­li­cans and Democrats will face off in the court­room this week in yet another chal­lenge to the Pa­tient Pro­tec­tion and Af­ford­able Care Act.

Oral ar­gu­ments are sched­uled Tues­day be­fore the 5th U.S. Cir­cuit Court of Ap­peals in New Or­leans in a case al­leg­ing the Af­ford­able Care Act is un­con­sti­tu­tional be­cause it is a rev­enuerais­ing law that should have orig­i­nated in the House rather than the Sen­ate.

Democrats say the bill did orig­i­nate in the House as an en­tirely dif­fer­ent mea­sure cen­ter­ing on a first-time home­buyer’s credit for mem­bers of the mil­i­tary, and the Sen­ate changed it into the bill that be­came the Af­ford­able Care Act. A fed­eral district judge in Texas had dis­missed the case,

Hotze v. Bur­well,

on the ba­sis that the Af­ford­able Care Act is not a law pri­mar­ily de­signed to raise taxes. Politi­cians who were granted per­mis­sion to par­tic­i­pate in oral ar­gu­ments in­clude for­mer House Ma­jor­ity Leader Eric Can­tor (R-Va.), cur­rent House Ma­jor­ity Leader Kevin McCarthy (R-Calif.), Rep. Sandy Levin (D-Mich.) and Sen. Ron Wy­den (D-Ore.).

Ker­mit Roo­sevelt, a con­sti­tu­tional law ex­pert at the Univer­sity of Penn­syl­va­nia, said it can be dif­fi­cult for courts to de­ter­mine ex­actly where a bill started when it was changed as much as the Af­ford­able Care Act, so the 5th Cir­cuit panel may de­fer to Congress’ judg­ment. He pre­dicted the suit would not pose as much of a threat to the re­form law as the pre­mium sub­si­dies

King v. Bur­well case be­ing heard next year by the Supreme Court. “But what we’ve been see­ing with these de­ci­sions is they tend to have a very strong po­lit­i­cal com­po­nent,” Roo­sevelt said. “So the pure le­gal strength of the ar­gu­ment doesn’t nec­es­sar­ily mat­ter as much as it might in a less ide­o­log­i­cally charged case.”


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