It’s the ultimate David vs. Goliath—small business owners in six states are taking the federal government to court, once again over ObamaCare.

The plaintiff’s home states have opted not to create health-care exchanges, but resident business owners will still be subject to the annual $2000 penalty per employee if they chose not to offer coverage – thanks, the lawsuit says, to a program add-on made by the IRS. The complaint was filed last week in U.S. District Court in Washington, D.C., and alleges the IRS made this move without Congressional approval. 

The plaintiffs argue that under the ACA, businesses in these nonparticipating states should be free of the employer mandate.

One of the plaintiffs, Dr. Chuck Willey, head of Innovare Health Advocates in St. Louis, Mo., says the IRS has re-written the law in a way that Congress did not intend. Willey said the language in the complaint is clear, and believes the case will reach the Supreme Court.

“I am just a little doctor out here in the Midwest, I feel I have my teeth in the ankle of the beast, hoping it’s the Achilles heel,” Willey said. “It’s destroying the American health-care system. This is my career, and I have four children about to have a life in this country. I need to do everything I can to turn it around.”

He said the biggest barrier to health-care in the country isn’t access, its cost—and although the ACA claims it will bring costs down, the opposite is true.

“Everything they aspired for, and wanted this bill for—we are in an era when the opposite is true,” Willey said. “It behooves me to keep my patients healthy over the long-term, and the law interferes with high-deductible plans, health-savings accounts, and prohibits ‘discrimination’ for self-manageable illnesses.”

J. Allen Thorpe, owner of 11 Olde England, and Lion and Rose LTD., Pub chains in Texas said he has nearly 1,000 employees and that  by filing this case, he is standing up for his workers.

ObamaCare has caused him to roll back hours for full-time workers from 40 hours to 28, in order to avoid the penalty.

“I appreciate what Texas did in not setting up an exchange, it was trying to protect small businesses from these penalties,” Thorpe said. “But then the IRS re-wrote the law, and expanded subsidies for those states who chose not to implement exchanges. Giving 28 hours to full time workers is the only way we know how to avoid penalties that would close our doors. If we don’t win this, we have to become a part-time society.”

Small-business attorney Eric Davis, partner at Davis and Davis, LLP, says if properly litigated, the suit has a real shot at reaching the Supreme Court.  Davis is not affiliated with this case.

“The expansion of ObamaCare by a government agency, even the IRS, at the expense of small business bears risk with the current composition of the Supreme Court,” Davis said.  “The Supreme Court stands as a formidable barrier for the expansion [of ObamaCare], which could be deemed a governmental ‘taking.’”

Davis says in times of war, under the original bill of rights, the government could “take” your property for general interest, but would have to compensate you for it; and, he argues, this is a form of taking, but without compensation, making it unconstitutional.

“The government is taking from your pocket due to a failure to comply,” Davis said. “For example, the government can take money out of your pocket if you don’t comply with the speed limit. In this particular case, it’s not a question of speeding; it’s a question of imposition.”

A third plaintiff, Ron Johnson, CEO of Community National Bank in Northeastern Kansas, said he is stepping up to fight the law because he feels it’s his duty as a small-business owner.

“We hear a lot of people complain about the ACA, but very few people are willing to do anything to try and change it,” he said. “We are just like hundreds of thousands of other small businesses across the country.”

He has four locations across the state, and has 80 employees that he offers coverage to, based on a pro-rata basis. It’s either drop coverage or cut hours, he said.

“We may have to drop coverage—that will be a decision our board will have to make as we go forward,” he said. “When the ACA came out, it was said ‘if you like your insurance, you can keep it.’ Well that turned out not to be true—we’d like that to be a true statement.”

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