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The courts may yet topple the entire law or at least cripple it badly enough to require Congress to act to fix or replace it. Here are 5 key cases to pay attention to in the months ahead.

All told, Obamacare and its tens of thousands of pages of companion regulations have spawned nearly 100 lawsuits.

These cases are presented below in order of the gravity (not likelihood) of the threat posed to the ACA.

Violation of the Origination Clause: Sissel v. United States Department of Health & Human Services (D.C. Circuit Court of Appeals)

The Issue: Did Passage of the ACA Violate the Constitution’s Origination Clause? Obamacare imposes a charge on Americans who fail to buy health insurance — a penalty payment that the U.S. Supreme Court characterized in June 2012 as a federal tax. In this case, the non-profit Pacific Legal Foundation argues that that this purported tax is illegal because it was introduced in the Senate rather than the House, as required by the Constitution’s Origination Clause.[2] The exact procedure used to pass the ACA is succinctly described at Breitbart.com: “On September 17, 2009, Congressman Charlie Rangel introduced a bill in the House, H.R. 3590, the “Service Members Home Ownership Tax Act of 2009,” whose purpose was “to amend the Internal Revenue Code of 1986 to modify the first-time homebuyers credit in the case of members of the Armed Forces and certain other Federal employees.” The bill passed the House on October 8 by a 416-0 vote. On November 19, Harry Reid introduced his own version of H.R. 3590 in the Senate. He took the bill that had been unanimously passed by the House, renamed it the “Patient Protection and Affordable Care Act,” deleted all its contents after the first sentence, and replaced it with totally different content. What followed was the first pass of the Senate version of ObamaCare.”

What if the Courts Rule Against Obamacare? A ruling in favor of the plaintiff would invalidate the entire law. Critics argue that courts could not justify setting aside the entire law based on such a procedural nuance. As well, the identical procedure has been used in the past, for example to pass the TARP bill in October 2008. The Supreme Court also established in 1892 an “enrolled bill rule” in its 1892 decision in the Marshall Fields Co. v. Clark case. Under this rule, “the Court essentially says if Congress tells it a bill originated in a specific House, it simply accepts that statement of enrollment as the ‘proper origination of the bill.’” The Supreme Court has reviewed only eight Origination Clause claims in its entire history, and has never invalidated an Act of Congress on that basis. However, recall that prior to Justice Roberts’ ruling, there was a widespread consensus that seven decades of Supreme Court precedents had pretty firmly established that there were few if any limits on the Congress’s use of the Commerce Clause. Yet a majority of the Court ultimately determined that Obamacare represented a step too far in terms of the exercise of that provision of the Constitution. It is certainly conceivable the Court could elect to put a stop to Congress’s steady erosion of the intent and letter of the Origination Clause by deciding that wiping out every word of a House-passed bill to substitute 2300 pages of Senate text would effectively render the Origination Clause meaningless were the Court to ignore it.

Current Status of the Case. The Chairman of the House Judiciary Subcommittee on the Constitution, Rep. Trent Franks of Arizona, and 19 House colleagues have co-sponsored H.Res. 153 on April 12, “Expressing the sense of the House of Representatives that the Patient Protection and Affordable Care Act of 2009 violates article I, section 7, clause 1 of the United States Constitution because it was a ‘Bill for raising Revenue’ that did not originate in the House of Representatives.”

The district court for the District of Columbia granted defendants’ motion to dismiss on June 28, 2013. Plaintiff appealed to the D.C. Circuit Court of Appeals on Jul. 5, 2013 and the case currently is awaiting briefing schedule.

Exchange Subsidies: Pruitt v. Sebelius (U.S. District Court for the Eastern District of Oklahoma)

The Issue: Are Subsidies Permitted in Federally-Run Exchanges? The ACA provides tax credits and subsidies for the purchase of qualifying health insurance plans on state-run insurance exchanges. An Internal Revenue Service (IRS) rule finalized on May 23, 2012 purports to extend these tax credits and subsidies to the purchase of health insurance in federal exchanges created in states without exchanges of their own.

Critics argue this rule lacks statutory authority. The text, structure, and history of the Act show that tax credits and subsidies are not available in federally run exchanges. Consequently, the IRS rule is contrary to congressional intent and cannot be justified on other legal grounds. Senator Orrin G. Hatch of Utah, the senior Republican on the Senate Finance Committee, argues that the Obama administration is usurping the role of Congress and rewriting the law to provide tax credits through federal exchanges. Consequently, in an amended lawsuit originally filed in January 2011, the attorney general for the state of Oklahoma has challenged this rule in court.

Supporters such as Washington and Lee University health law professor Timothy Jost concede that there was a “drafting error” but argue that congressional intent was clear: subsidies would be available in all exchanges, not just those run by the states. In scoring the bill, for example, CBO assumed subsidies would be available in all states and no objections were raised by Republicans that the CBO analysis was flawed.

What if the Courts Rule Against Obamacare? Under the employer mandate, employers are penalized for not offering coverage only if one or more workers obtain subsidized coverage on the exchange. Likewise, people can obtain an exemption from the individual mandate if the least expensive plan in their area exceeds 8% of income, a situation that will affect many more people if there are no subsidies available through the exchange. Thus, if the court upholds Oklahoma’s position, the immediate effect, according to AEI legal and health policy expert Tom Miller, would be to “cripple the federal exchange operations in Oklahoma, and encourage dozens of other states to mount similar challenges and continue to refuse to authorize their own state-administered exchanges.” If these challenges are successful (or resolved by the Supreme Court), then in states that do not set up their own exchange, the entire employer mandate will be unenforceable, along with the individual mandate for many people. Effectively, the law might well completely collapse in the 28 states planning to rely on a federal exchange (and likely the 7 states in partnership exchanges as well).

Current Status of this Case. On August 12, 2013, the district court rejected a motion to dismiss the Oklahoma case and ruled that the case could move forward. As Tom Miller summarized it, the court “dismissed two counts in the amended complaint but upheld three other ones that now will move ahead for consideration under upcoming motions for summary judgment later this year.” The three issues still in contention are whether the IRS rule was (1) beyond the power or authority of the federal agency to issue, (2) in violation of the federal Administrative Procedure Act (e.g., for being arbitrary, capricious, an abuse of discretion, not authorized by law), and (3) potentially trying to commandeer state government authority in an unconstitutional manner by allowing the federal government to set up its own exchange in Oklahoma as a “state-administered” exchange — as defined in section 1311 of the ACA. A favorable ruling on any one of these substantive points would put the exchange subsidies in jeopardy.

Exchange Subsidies: Halbig v. Sebelius (U.S. District Court for District of Columbia)

The Issue: Are Subsidies Permitted in Federally-Run Exchanges? This suit, filed in May 2013 by a group of employers and individuals, is a challenge to the legality of exchange subsidies that parallels the Oklahoma case.

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http://www.forbes.com/sites/theapothecary/2013/09/13/will-the-courts-derail-obamacare/2/