Next Challenge to the PPACA?

This lengthy post deserves an introduction so I thought I would do one. We have been through several constitutional tests on the legitimacy of the PPACA. In each case and also in a congressional vote, the Republicans have failed to disenfranchise US citizens on healthcare. The next issue being brought to the forefront is just as divisive and has the backing of five right-leaning justices. It remains to be seen if they can be successful.

There is supporting documentation at the end of this post.


“The legal arguments in are not exactly good arguments, but five justices have signaled they agree with them.”

The suit before the Texas federal judge Reed O’Connor having given SCOTUS the last PPACA challenge appears ready to lob another suit its way.

In a nut-shell:

Kelley v. Becerra will eventually get to SCOTUS unless there is enlightened federal judge stopping it or Appeals Court with SCOTUS refusing to review it. It is currently pending in Texas before Judge Reed O’Connor. If you do not recall, Texas Judge Reed O’Connor struck down the entire Affordable Care Act on the basis that parts of the PPACA are not severable. The theory being, the PPACA must be struck in entirety as parts of it can not be excluded (in this case the mandate). The Roberts Supreme Court refused to take it up. Not really a win as it should have never got this far.

Kelley v. Becerra complainants are individuals and small companies wanting to buy insurance that excludes coverage for contraception and pre-exposure prophylaxis. The complainants object to on religious and moral grounds. The kind of insurance they are looking for is impossible to find, they say. The complainants blame the Affordable Care Act.

Via Vox comes the argument:

Kelley v. Becerra is the fourth round of litigation attacking major provisions of the Affordable Care Act.

The complainants seek to remove the provisions of Obamacare governing forms of preventive care such as birth control, immunization for children, etc., cancer screenings, etc. which is covered by health insurers under the PPACA.

The argument relies on the kind of outdated legal arguments in the federal courts more than 80 years ago. Only an originalist would think of this.

Several provisions of the Affordable Care Act require group and individual health plans to cover various preventive treatments and to not “impose any cost sharing requirements,” such as copays, deductibles, for them. When Congress wrote Obamacare, however, it did not itemize which treatments must be covered. Instead, it delegated that power to three different government bodies.

Supreme Court: A new lawsuit attacking Obamacare is a serious threat to the law, Vox

There in lies the issue, the delegation of authority without detail and to non-officers of the government. This is similar to the issue with the Risk Corridor Funding. Congress did not allocate funding. Sessions, Upton, and Kingston blocked the Administration from allocating or transferring funds. The Executive branch can not allocate funding, only Congress can (GAO-letter to Sessions). Follow the link for an explanation.

Some Explanation:

Kelley v. Becerra raises several arguments claiming certain aspects of the PPACA are not constitutional. And why is such so?

  • One argument using Gundy: (an earlier decision) claims the PSTF and the ACIP panels empowered to add items to the list of preventive services are not “officers of the United States.” Therefore, the panels are not authorized to have regulatory power. There appears to be an issue in delegating authority and creating a foundation for the authority.

“Officers of the United States” may only be appointed by the president, the “courts of law,” or the “heads of departments such as the Cabinet. While ACIP members are appointed by the Secretary of Health, the PSTF panel members are appointed by the director of the Agency for Healthcare Research and Quality. The PSTF director is not considered to be an officer of the US.

Under current law, Congress has broad authority to delegate regulatory power to federal agencies. As the Court held in Mistretta v. United States (1989), Congress may permit agencies to regulate private entities so long as Congress “sets down by “legislative act” an intelligible principle to which the person or body authorized is directed to conform.”

Me: Justice Neil Gorusch wrote the dissent in Gundy v United States:

Justice Neil Gorsuch’s position and approach is strict constitutional limits on Congress’s ability to delegate regulatory authority to agencies (not sure if he is more liberal with a Republican administration). Key to permitting agencies to regulate (Gundy v United States), the rules or regulations must be “sufficiently definitive and precise so as to enable Congress, the courts, and the public to ascertain whether Congress’s guidance has been followed.”

Gundy v United States Explained:

  • The outcome: The United States Supreme Court affirmed the decision of the lower courts and held that the relevant part of SORNA did not violate the nondelegation doctrine.

The vote was 5 – 3 with Kavanaugh abstaining and Roberts, Gorusch, and Thomas voting “it was unconstitutional.” Roberts, Gorusch, and Thomas believed the actions of Congress delegating authority to the attorney general in SORNA was unconstitutional. This is different than what has occurred in the past and is an “originalist” view. Note the word Congress as the three jurists believe only Congress can decide and the decision making even restricted by guidelines as a foundation can “not” be delegated.

Me: Justice Neil Gorusch is like Antonin Scalia and Clarence Thomas in beliefs.

While dissenting in Gundy v. United States (2019), Justice Neil Gorsuch proposed in his decision a vague and new standard empowering the Supreme Court to veto any regulation promulgated by a federal agency.

Me: This sounds more like SCOTUS legislating from the bench (opinion) and something which Republicans have complained about from time to time with more liberal justices. It also appears, Justice Gorusch does not want to enforce past precedent and would rather usurp the power of the Executive branch and Congress by granting power to the Courts.

  • Another argument using Gundy: (an earlier decision) Both Gundy and the Paul stance concern a defunct legal doctrine known as “nondelegation.” Or a principle in administrative law, Congress and the Executive branch can not delegate its legislative powers to administrative entities without specific rules.

In the late 1980s, originalist Justice Scalia was also one of the Court’s staunchest defenders of a strong administrative state allowing presidencies to empower agencies to determine rules outside of Congress or Cabinet Secretaries. If the sitting president was a Republican and or conservative, they had latitude. Scalia’s View?

“Administrative law is not for sissies-so you should lean back, clutch the sides of your chairs, and steel yourselves for a pretty dull lecture.”

Judicial Deference tp Administrative Interpretations of Law, Duke Law Journal, Justice Antonin Scalia,

Imagine , the ultraconservative Justice Antonin Scalia embracing an administrative state empowered mostly by legitimately, elected Republican and Democratic authority? It has only been with the rise of Trump has their been a concentration of authority to a few. I leave the rest of the point unanswered.

Some History:

Presidents Ronald Reagan and George H.W. Bush benefited the most by Justice Antonin Scalia’s support. Conservatives benefited from court decisions giving the Reagan and Bush administrations broad leeway to set federal policy. Both administrations used this leeway to deregulate.

Me: Today, the Biden administration is attempting to regulate. In a reversal mode, SCOTUS is on the brink of taking back the ability of the administrative state with an elected Biden administration in power and resurrect defunct nondelegation. If this is not a political leaning from a supposed independent judiciary, I am not sure what it is.

As you read this, it may begin to make sense to you what is occurring. The nonpolitical branch of the government, made political by appointments, is now attempting to rein in the power of agencies by beginning to enforce “nondelegation.” Nondelegation a old doctrine going back to Roosevelt.


Justice Gorsuch wrote the Gundy opinion in dissent. Four justices (including Roberts) have since signed on to the general framework of what Gorsuch proposed in Gundy (Brett slam them down Kavanaugh wrote his own decsion) to rein-in the Executive branch’s delegated administrative authority. They will attempt to hamstring the Executive branch while the fools in the Senate are still playing the “game” of bipartisanism.

Texas Judge Reed O’Connor is setting up this case in which he will reject the administration arguments and launch this case which a majority conservative SCOTUS will accept. Along similar lines, the plaintiffs, “wish to purchase health plans that do not cover some of the preventive services that insurers are currently required to cover” using religious and political beliefs as the reasoning. Plaintiffs have also objected to a requirement of insurers paying for pre-exposure prophylaxis (“PrEP”), drugs. Drugs effective in preventing the transmission of HIV They believe PrEP “encourage[s] and facilitate[s] homosexual behavior.”

It is about discrimination of individuals leading a different lifestyle than what others want.

There is a pretty good discussion on nondelegation at Ballotpedia which offers citations and also other links besides Grundy v United States. It is a good read and gives a pro-con discussion of the merits of either side. I believe my stance on this is pretty clear.

Some References to Read:

Chemerinsky: How the Roberts Court could alter the administrative state (

Supreme Court: A new lawsuit attacking Obamacare is a serious threat to the law – Vox

The Next Major Challenge to the Affordable Care Act – The Atlantic

Gundy v. United States – Ballotpedia

Nondelegation doctrine – Ballotpedia