Left-Wing New Republic Fears New ObamaCare Lawsuit: Conservatives' Last Legal Option to Invalidate Obamacare

The New Republic reports on its new fear:

Michael Cannon of the Cato Institute, and Jonathan Adler of Case Western Reserve University, who are Obamacare critics, argue that a much more consequential challenge is not only possible, but inevitable. Cannon and Adler's case deals with the law's employer mandate, which stipulates that businesses of 50 or more employees must provide health benefits to their employees, or pay a penalty. They're not arguing that such a mandate is unconstitutional. Rather, they contend that in certain cases, the text of the law does not permit the federal government to levy such a penalty on stingy employers.

Here's why: The employer mandate--the thing that's keeping the Walmarts of the world in line--is conditional upon the existence of tax credits and subsidies that are administered through state-run insurance exchanges (marketplaces that will allow state residents to shop comparatively for insurance; without the subsidies, insurance would remain too expensive for many people.) Right now, however, since several states are refusing to create those exchanges, the federal government has decided to create the exchanges on their behalf.

It's here that the problem arises. Cannon and Adler argue that the law doesn't permit the federal government, through those exchanges, to administer the subsidies and tax credits that are currently required of the states. And if the creation of federally-run exchanges would make it illegal to provide any subsidies at all, they argue that it would also be illegal for the government to penalize employers who refuse to provide adequate health benefits in those states.

Attention Justice Roberts and the Gang of 4 statists: by writing a law from the bench, you've created a financial nightmare. Nice legacy!