While the nation eagerly awaits the Supreme Court’s ruling in King v. Burwell, a case brought by an unknown Pennsylvania tax collector has quietly made its way to the U.S. Court of Appeals for the District of Columbia and has the potential to end President Barack Obama’s most important piece of legislation, the Affordable Care Act.
Like countless others, Jeffrey Cutler, currently the tax collector of East Lampeter Township, Pennsylvania, received a notice from his health insurance company in October 2013 that indicated his plan did not qualify for renewal under the rules established by the Affordable Care Act (ACA), also known as Obamacare. Cutler, who had been enrolled in the same plan since 2007, was satisfied with his coverage and did not want to switch to what he considered to be an inferior plan offered through the government-run health insurance exchange.
Facing significant political pressure from Republicans and Americans who had lost their insurance plans, Obama announced a “transition policy” in November 2013 that promised to allow individuals to temporarily keep their health insurance plans even if they otherwise would not qualify for renewal under the ACA. However, the transition plan was not applied universally; state governments had the authority to decide whether or not to allow their own citizens to keep their plans.
Rules established by Pennsylvania state officials made it possible for Cutler to keep his plan, but only if his insurance company agreed. His insurance company did not, and Cutler lost his insurance on January 1, 2014. He has been without health insurance since.
Representing himself, Cutler filed suit on December 31, 2013, alleging Obamacare violates his constitutional rights on two counts. First, Cutler says the Obama administration’s transition policy, also known as the “administrative fix,” violates the Fifth Amendment’s guarantee to equal protection under the law. Because every state was given the authority by the federal government to apply the administrative fix differently, Obamacare did not exist equally in every state. If Cutler had been a citizen of Arkansas, a state that required insurance companies to continue covering what the ACA determined to be non-compliant plans, he would have been able to keep his health insurance.
Cutler’s second argument is Obamacare violates the Establishment Clause of the First Amendment. According to Cutler, who is Jewish—a religion that is not exempt from Obamacare mandates—federal agencies under Obamacare unfairly give certain religious groups the freedom to avoid having compliant health insurance plans without paying a penalty. By making this exception, Obamacare clearly favors some religious groups over others.
The federal government filed a motion for dismissal in U.S. District Court claiming Cutler lacked proper standing. Judge Colleen Kollar-Kotelly granted the dismissal, and Cutler appealed the decision to the U.S. Court of Appeals, which has agreed to hear the case. Oral arguments were presented on May 12.
Cutler is now represented by constitutional lawyers David Yerushalmi and Robert Muise of the American Freedom Law Center, and he’s confident his case will eventually take down Obamacare.
“My case is a full blown frontal attack on the constitutionality of the law,” said Cutler. “Many of the cases are about minute parts of the law. King v. Burwell is about five words. Hobby Lobby’s suit was largely about contraception. My case strikes at the heart of Obamacare and the administrative fix that was unconstitutionally applied after ACA’s passage.”
West Virginia Attorney General Patrick Morrisey filed suit on behalf of his state in July 2014 alleging similar claims.
“My letter to the attorney general of [West Virginia] seems to have resulted in them also challenging the law on the same point,” said Cutler.
“I think Jeffrey Cutler is correct—his First Amendment rights, and probably those of many other people, may have been violated under the ACA,” said Kenneth Artz, a research fellow specializing in health care at The Heartland Institute. “This is not unexpected considering Obama’s massive health care reform bill is the most complex piece of legislation in the history of the world.”
Regardless of what the D.C. Court of Appeals decides, Cutler says he expects his case to eventually be heard by the Supreme Court.
No matter what becomes of Cutler’s case, his arguments raise important questions about the federal government’s authority to create laws and regulations that are applied unequally. While it’s true the signers of the Constitution and the Bill of Rights did not intend for religion to be shoved out of the public sphere, they absolutely were concerned about the federal government favoring one religious group over another, and they also feared certain states, especially the more wealthy and powerful states, being treated differently than others.
It’s within this context that the Constitution was agreed upon, and Cutler’s case directly addresses these same concerns. If federal authorities can pick particular groups based on religion or geography to exempt from federal law, then our national laws are, by definition, not truly national and not equally applied.
The only question now is: Will the courts agree, or will they allow the power of the executive branch to continue to expand beyond what anyone in 1789, when the Constitution was implemented, believed was possible under the law?