Obamacare Survives Latest Supreme Court Challenge, But Can It Survive the Next One?

Obamacare, formerly known as the Affordable Care Act, just survived its third legal challenge in the 11 years
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Obamacare, formerly known as the Affordable Care Act, just survived its third legal challenge in the 11 years since it became the law of the land in the United States. But keen legal observers may see today’s decision as less of a victory for proponents of Obamacare and more a set-up punch for the upcoming final round.

In a 7-2 decision in California v. Texas, argued in front of the Supreme Court in November and decided on Thursday, June 17th, the Court upheld Obamacare from both state and individual challenges. But what the Court didn’t do may prove infinitely more important, as they refused to make a decision on the actual constitutionality of the Affordable Care Act, leaving the door open for its key provisions to be struck down the next time they allow a new set of petitioners to enter their hallowed halls to take a new swing at the fences.

"We do not reach these questions of the Act’s validity, however, for Texas and the other plaintiffs in this suit lack the standing necessary to raise them," Associate Justice Stephen Breyer wrote for the majority. If this isn’t a legal red flag, it’s at least construction sign orange.

Adriana Gonzales, a Florida lawyer, observes that:

“Any Supreme Court decision that doesn’t address the fundamental constitutionality of the Affordable Care Act worries those of us who represent the interests of so many people who need this legislation to survive.”

Justices Gorscuh and Alito wrote a dissenting opinion, but there is actually significantly stronger legal reasoning in the majority opinion that makes Obamacare vulnerable. In an admitted speed-read of the 57-page decision, what stands out is that the only substantive issue addressed here is actually a very minor one.

The Opinion of the Court states that there was no harm to opponents in this case from the provisions that they are challenging because Congress had already reduced the penalty for failing to buy health insurance to $0. Inverting Justice Breyer’s words in the majority opinion, leads any legal analysts to conclude that had the plaintiffs in California v. Texas been able to show a “concrete, particularized injury fairly traceable to the defendants' conduct in enforcing the specific statutory provision they attack as unconstitutional,” which Breyer writes they did not, then we would have opened up a fresh can of legal worms, which at this point seems an inevitability.

One somewhat cynical yet not wholly inaccurate notion floating around social media in the moments since the decision is that California may be a kind of parting gift for Justice Breyer getting off the proverbial fence and electing to retire while the Democrats are still in control and can name his replacement and at least keep a 3-6 liberal deficit on the Court rather than face the chilling prospect of a 2-7 Court in the not-too-distant future.

Believing that this decision is anything more than a reprieve for Obamacare is a dangerous miscalculation. There is a significant fight to come and no one should be surprised if it comes as early as the Supreme Court’s next term, which begins in October.

Aron Solomon, JD, is the Head of Strategy for Esquire Digital. He has taught entrepreneurship at McGill University and the University of Pennsylvania, and was the founder of LegalX, the world’s first legal technology accelerator. Aron’s work has been featured in TechCrunch, Fortune, Venture Beat, The Independent, TechCrunch Japan, Yahoo!, ABA Journal, Law.com, The Boston Globe, The Hill, and many other popular publications, including our own Today’s Esquire.

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