Warren County’s Obamacare challenge nears first hurdle

Federal lawyers say suit should be dismissed.

The Supreme Court ruled last week that subsidies enjoyed by 6 million Americans in 37 states under the law, also known as Obamacare, were legal.

But other legal challenges, including the one filed by the attorney general and Warren County in federal court in Cincinnati, are moving forward.

“Part of the reason you’re seeing a significant number of challenges to various provisions of Obamacare is the Affordable Care Act is such a complicated law,” Warren County Prosecutor David Fornshell said.

Federal lawyers want the case dismissed.

“Plaintiffs’ statutory arguments fail both at the threshold and on the merits, and plaintiffs’ constitutional arguments are untenable under modern case law construing the Tenth Amendment and the Intergovernmental Tax Immunity doctrine. Because it is clear that plaintiffs have no valid legal claims, defendants respectfully request that their motion be granted and the case be dismissed,” Acting Assistant Attorney General Benjamin C. Mizer said in filings last week in U.S. District Court in Cincinnati.

The lawsuit questions whether Warren County, the Ohio Department of Administrative Services, the Ohio Turnpike and Infrastructure Commission, the University of Akron, Shawnee State University, Bowling Green State University and Youngstown State University should be subject to the fees used to fund the new health care law’s transitional reinsurance program.

These agencies have already paid more than $6.3 million and face additional charges to fund the program, according to the lawsuit. Their lawyers argue the fees are an illegal tax on the self-insured employee health insurance programs.

In one filing, Assistant Warren County Administrator Tiffany Zindel said $94,710 had been paid electronically on Jan. 14 and another $18,942 was due on Nov. 13.

Despite the county’s protests, federal officials “have not returned the money, and Warren County, Ohio, is without control over those funds,” Zindel said. Officials from each of the state agencies in the lawsuit filed similar statements about payments.

No other counties, state agencies or universities have joined in the lawsuit. Kansas raised similar questions with the U.S. Department of Health and Human Services, which is administering the law, but has filed no litigation, Dan Tierney, spokesman for Attorney General Mike DeWine, said.

By Aug. 6, lawyers for DeWine and Warren County are expected to file briefs designed to convince the judge to rule in their favor — or at least allow the case to continue forward.

Joining DeWine and the Warren County Prosecutor’s Office is Kyle Duncan, a private lawyer based in the Washington D.C. Duncan has already been paid $30,000 by Warren County and could earn up to $160,000 assisting in the litigation.

Duncan was lead counsel in the Hobby Lobby case, in which the Supreme Court struck down the section of the law requiring closely held corporations to offer contraception to employees through their health plans.

Duncan, while general counsel of the Becket Fund for Religious Liberty, also represented religious nonprofits, including Wheaton College in Illinois, appealing sections of the law requiring them to provide contraception to their employees.

Duncan provides expertise on “certain constitutional issues,” as well as enough time to do the legal research required to support their federal case, Fornshell said.

Fornshell, a Republican, said the challenge was based on solid legal grounds, rather than politics.

“There are some groups out there challenging it just because they don’t like it,” he said.

Through the transitional reinsurance fees, the federal government is expected to raise $25 billion “to artificially decrease premiums,” Fornshell said.

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