Scalia offers Obamacare foes a new legal argument

Most legal watchers have been focusing on the Hobby Lobby and Halbig cases as the biggest threats to the Patient Protection and Affordable Care Act. But if noted legal scholar and former Obama administration official Cass Sunstein is correct, the U.S. Supreme Court provided Obamacare foes a potentially potent new legal argument in a just-decided case (PDF).

Writing in Bloomberg View about the just-decided case Utility Air Regulatory Group v. Environmental Protection Agency, concerning the EPA's ability to regulate greenhouse gas emitters, Sunstein notes language from Justice Antonin Scalia, who wrote the majority opinion. “While the decision ... largely upheld the EPA's authority, it invalidated the agency's decision to exempt small emitters and thus 'tailor' its greenhouse-gas regulations to allow greater flexibility,” Sunstein wrote.

The EPA had argued that it preferred to exempt smaller emitters due to the “administrative necessity,” meaning it would be too difficult to track them all down and regulate them.

But the high court's majority opinion in Utility Air said the language of the statute empowering the EPA to take action is unambiguous and that it would violate the constitutional separation of powers for the EPA to interpret statutory language in a way that's convenient for the agency.

“In the context of the Affordable Care Act, of course, there have been heated controversies over the Obama administration's efforts to delay implementation and to create other forms of flexibility,” Sunstein wrote, noting HHS' numerous delays, waivers and other regulatory changes in implementing the ACA.

According to Sunstein, the court left one avenue for HHS—enforcement discretion. “In the court's view, a refusal to enforce legal requirements is not the same as an effort to alter those requirements.”

Sunstein concluded that “there's no question that the court's discussion will be invoked in Affordable Care Act litigation—and it is reasonable to wonder whether Scalia had that in mind as he wrote the EPA opinion.”

Follow Darius Tahir on Twitter: @dariustahir