Obamacare heading back to the Supreme Court

In 2014, SCOTUS may hear the federally facilitated exchanges (FFE) tax credit cases, in addition to the contraception mandate cases (Hobby Lobby and many others; BNA has a nice gated summary; Sotomayor just granted a delay for the plaintiffs pending full review).

The contraception mandate, while high profile, will not threaten the ACA. It is not actually a constitutional challenge, but a statutory issue under the Religious Freedom Restoration Act. No matter how the Supreme Court rules, the ruling will not gut the rest of the law.  (Back in the NFIB ruling in June 2012, four justices said the ACA was not “severable” from the Medicaid expansion; that threat isn’t present in the contraception mandate cases). So – an interesting question of religious freedom for privately held corporations, but no fundamental upheaval of the ACA.

The same cannot be said for the FFE tax credit cases, which were designed by the Cato Institute to wreck havoc. The most prominent federal district court cases are Halbig v. Sebelius in Washington, D.C. and King v. Sebelius in Virginia. The conventional wisdom is that SCOTUS won’t take the bait and the law is safe (see the McDermott Will & Emery briefing here). That was my prediction back in July 2012.

(Disclosure:  MWE is one of the nation’s premier tax and health care law firms, with many clients in the industry; I was an income partner there many years ago)


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