The Affordable Care Act’s Litigation Decade

ABBE R. GLUCK,* MARK REGAN** & ERICA TURRET***

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1472

I. B

RIEF OVERVIEW OF THE ACA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1475

II. T

HE EXISTENTIAL CHALLENGES: NFIB, KING, AND TEXAS. . . . . . . . . . . 1477

A. NFIB: A CONSTITUTIONAL CHALLENGE TO THE INDIVIDUAL

MANDATE AND THE MEDICAID EXPANSION . . . . . . . . . . . . . . . . . . . .

1478

B. STRIKING AT “BITS AND PIECES OF THE LAW”: A NEW LEGAL

STRATEGY AND KING V. BURWELL . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1484

C. USING THE MANDATE TO PULL THE WHOLE ACA DOWN: CALIFORNIA

V. TEXAS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1487

III. H

UNDREDS OF OTHER CHALLENGES IN FEDERAL COURT: INSURANCE,

IVIL RIGHTS, AND ACA DEFENSE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1491

A. INSURERS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1492

1. The “Three Rs” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1494

a. Risk Corridors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1494

b. Risk Adjustment. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1496

c. Reinsurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1496

B. COST SHARING REDUCTION PAYMENTS. . . . . . . . . . . . . . . . . . . . . . . . 1497

C. CONTRACEPTION AND CIVIL RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . 1500

1. Contraception. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1500

2. Civil Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1505

* Professor of Law and Faculty Director, Solomon Center for Health Law and Policy, Yale Law

editors at The Georgetown Law Journal, and Larry Gostin for helping to bring this Symposium issue

together. The authors dedicate this Article, with our enduring thanks and admiration, to our

incomparable colleague, Timothy Stoltzfus Jost.

** Legal Director at the Disability Law Center of Alaska, and editor of affordablecareactlitigation.

com. The views expressed on that site and in this Article are his own.

*** Yale Law School, J.D. 2020.

1471

D. DEFENDING AGAINST A NEW ADMINISTRATION HOSTILE TO THE

LAW: MEDICAID WORK REQUIREMENTS, IMMIGRANT ACCESS, AND

EFFORTS TO UNDERMINE THE INSURANCE POOLS. . . . . . . . . . . . . . . .

1509

1. Chipping Away at Medicaid . . . . . . . . . . . . . . . . . . . . . . 1510

2. Efforts to Undercut Access for Immigrants . . . . . . . . . . . 1513

3. Efforts to Disrupt the Risk Pool . . . . . . . . . . . . . . . . . . . 1515

IV. A

LMOST 2,000 OTHER FEDERAL AND STATE CHALLENGES . . . . . . . . . . . . 1518

A. ENFORCING NEW RIGHTS UNDER THE ACA . . . . . . . . . . . . . . . . . . . . . 1518

B. MORE CHALLENGES TO ADMINISTRATIVE ACTION IMPLEMENTING

THE ACA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1518

C. INDIVIDUAL SUITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1521

D. CHALLENGES TO ASPECTS OF STATE IMPLEMENTATION OF THE ACA

OR EFFORTS TO REGULATE ALONGSIDE THE ACA . . . . . . . . . . . . . . . .

1522

E. STATE COURT CASES: INTRAGOVERNMENTAL DISPUTES AND MORE . . 1523

V. B

ROADER SIGNIFICANCE FOR PUBLIC LAW . . . . . . . . . . . . . . . . . . . . . . . . . 1524

A. CONSTITUTIONAL LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1524

B. ADMINISTRATIVE AND STATUTORY LAW . . . . . . . . . . . . . . . . . . . . . . 1529

ONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1534

NTRODUCTION

The decade of the Affordable Care Act (ACA) has been a decade in court.

The ACA is the most challenged statute in American history. The ﬁrst lawsuits

were ﬁled moments after the law was enacted—on March 23, 2010—alleging

that the ACA was unconstitutional.

Ten years later, the ACA is still under attack,

being litigated in three Supreme Court cases within the current year alone

—for a

collective total of seven Supreme Court challenges in a decade.

One of the

1. See Complaint, Florida ex rel. Bondi v. U.S. Dep’t of Health & Human Servs., 780 F. Supp. 2d

1256 (N.D. Fla. 2011) (No. 3:10-cv-00091-RV-EMT), 2010 WL 1038209; Complaint for Declaratory

and Injunctive Relief, Virginia ex rel. Cuccinelli v. Sebelius, 702 F. Supp. 2d 598 (E.D. Va. 2010) (No.

3:10-cv-00188-HEH), 2010 WL 11240598.

2. Me. Cmty. Health Options v. United States, No. 18-1023, 2020 WL 1978706 (U.S. Apr. 27, 2020);

Trump v. Pennsylvania, 140 S. Ct. 918 (2020) (mem.); California v. Texas, 140 S. Ct. 1262 (2020)

(mem.).

3. The other four cases are NFIB v. Sebelius, 567 U.S. 519 (2012); Burwell v. Hobby Lobby Stores,

573 U.S. 682 (2014); King v. Burwell, 135 S. Ct. 2480 (2015); and Zubik v. Burwell, 136 S. Ct. 1557

(2016). This number does not include a recent emergency order staying a Second Circuit injunction in

another ACA-related case concerning an immigration rule known as the public charge rule, Department

1472 THE GEORGETOWN LAW JOURNAL [Vol. 108:1471

pending cases is another major challenge to the statute’s entire existence.

Along

the way, the statute has been rebelled against by the states charged with imple-

menting it,

sabotaged by the second President to administer it,

and ﬁnancially

starved by Congress.

All of these events have fed a swirl of litigation and made

for a story of unprecedented statutory resilience.

Everything about the ACA litigation—the stakes, the political and media

atten-

tion,

and even the number of hours of oral argument granted by the Supreme

Court—has been “outsized,” as one former U.S. Solicitor General aptly put it.

The breadth of the more than 2,000 legal challenges has been staggering. The liti-

gation

reveals the extensive reach of the ACA into all areas of our economy and

its effects far beyond healthcare. It shows the legal complexity of a federal law

that does not rely solely on the federal government to administer it but relies on

states and private actors as well. And it underscores the political and practical

challenges of government intervention that aims to affect not only individual

behavior but also private relationships, including those between employers and

employees, and between patients and healthcare providers. For some, such inter-

ventions

are an unacceptable overreach.

The ACA is

the most signiﬁcant healthcare legislation in recent American his-

tory, at least since Medicare and Medicaid were enacted in 1965. The cases it has

generated in court have, of course, shaped American healthcare and the programs

that comprise it. But they also have shaped constitutional law, federalism, statu-

tory interpretation, administrative law, and our conceptualizations of the rights

and duties of states and private actors charged with implementing federal statutes.

The legal challenges also underscore deep and longstanding philosophical

ten-

sions

within American healthcare itself. The norms of solidarity and community—

that everyone should contribute so everyone can receive good healthcare—have

long stood in counterpoise to the libertarian and market-based position that one

gets only the healthcare one can pay for (and that matches one’s risk proﬁle).

The fragmentation of American healthcare that preceded the ACA—a mix of

government programs and substantial reliance on the private market—reﬂected

of Homeland Security v. New York, 140 S. Ct. 599 (2020) (mem.) (order on application for a stay). The

Supreme Court also stayed an Illinois-speciﬁc injunction of the same rule. Wolf v. Cook County, 140 S.

Ct. 681 (2020) (mem.) (order on application for a stay). See infra Section III.D.2.

4. California v. Texas, 140 S. Ct. 1262 (2020) (mem.).

5. See infra Section II.B.

6. See infra Sections III.A, III.D.2.

7. See infra Section III.A.

8. Paul Clement, The ACA and the Courts: Two Perspectives, Part Two, in T

HE TRILLION DOLLAR

REVOLUTION: HOW THE AFFORDABLE CARE ACT TRANSFORMED POLITICS, LAW, AND HEALTH CARE IN

AMERICA 163, 163 (Ezekiel J. Emanuel & Abbe R. Gluck eds., 2020).

9. See Wendy K. Mariner, Social Solidarity and Personal Responsibility in Health Reform, 14 C

ONN.

NS. L.J., 199, 200–01 (2008); Deborah Stone, The Struggle for the Soul of Health Insurance, 18 J.

EALTH POL., POL’Y & L. 287, 290 (1993). Before the ACA, most insurers distinguished among

prospective customers, in terms of both eligibility and pricing, based on their risk of disease.

2020] THE AFFORDABLE CARE ACT’S LITIGATION DECADE 1473

that normative ambivalence.

And the structure of the ACA for the most part does

not change that. The ACA retains the mixed system of federal, state, and private

healthcare that came before it, but seeks to make the system more generous and ac-

cessible across every dimension. As a result, the ACA in some places advances

solidarity—requiring that we all participate and that everyone gets covered—and

in other places retains individualism and the market structure. The litigation has

largely centered around solidarity—both challenging it and protecting it.

And yet, litigation has transformed the ACA and the public’s understanding of

it and its goals. Whereas the ACA came into the world as an uneasy political com-

promise between solidarity and market norms that frustrated some reformers wish-

ing to see more,

it has emerged from a decade of litigation much more closely

aligned with the norms of solidarity and universal coverage than it was in 2010.

Take, for example, the signiﬁcant choices that the ACA puts to the states. Some

of those choices are the direct result of litigation, including the Supreme Court’s

own interpretation of the law and its decision to allow states to opt out of the

Medicaid expansion. Those choices are essentially choices about how much of the

population to cover and so they elevate the salience of that issue. Efforts to stran-

gle and repeal the law have failed largely because of the people who would be

thrown off the rolls. The ongoing litigation about access to medicine, nondiscrimi-

nation, and immigrants’ right to healthcare is also about the population’s ability to

access care. Even the many signiﬁcant cases involving insurers are about the

promises the government made to the industry to convince it to implement the

law, and how easily the government can walk back those promises. Those cases,

too, are in a sense about the struggle between a market model and a model that

puts special obligations and responsibilities on the federal government.

Even prominent conservatives have observed how this decade of ﬁghting over

the ACA has changed what the law stands for and how we understand our health-

care system. As former Republican House Majority Leader Eric Cantor has

noted, most signiﬁcantly, the “baseline” has changed; a replacement that does not

cover the same number of people is now widely viewed as politically unaccept-

able.

That is an enormous shift. Consider that when the ACA was enacted, a

“public option”—a government-run insurance program that would compete with

others—was viewed as too radical;

now it is one of the more moderate pro-

posals

on the table for future reform.

10. For a discussion of this fragmentation, see generally THE FRAGMENTATION OF U.S. HEALTH

CARE: CAUSES AND SOLUTIONS (Einer R. Elhauge ed., 2010).

11. L

AWRENCE R. JACOBS & THEDA SKOCPOL, HEALTH CARE REFORM AND AMERICAN POLITICS:

HAT EVERYONE NEEDS TO KNOW 78–82 (3d ed. 2012); PAUL STARR, REMEDY AND REACTION: THE

PECULIAR AMERICAN STRUGGLE OVER HEALTH CARE REFORM 239 (2011).

12. See Eric Cantor, The ACA and the Republican Alternative, in T

HE TRILLION DOLLAR

REVOLUTION, supra note 8, at 139; accord Joseph Antos & James C. Capretta, The Road Not Taken, in

HE TRILLION DOLLAR REVOLUTION, supra note 8, at 72 (discussing how “[t]he ACA established policy

objectives that set a base for future reforms”).

13. See Abbe R. Gluck & Thomas Scott-Railton, Affordable Care Act Entrenchment, 108 G

EO. L.J.

495, 501 (2020) (“The Party position has now shifted so much that a ‘public option’ [in 2008] has gone

1474 THE GEORGETOWN LAW JOURNAL [Vol. 108:1471

This Article documents in one place (the ﬁrst to our knowledge) the sheer

breadth and volume of the decade of litigation about the ACA, covering the

pe-

riod

from the day the law was enacted, March 23, 2010, until April 2020. The

relentless and multipronged legal attacks on the ACA, and the ACA’s survival

and transformation through and in large part because of them, are an important

part of the history of not only the ACA but the law of the decade itself.

After a brief overview

in Part I of the ACA and the political context in which

the ACA was challenged and implemented, Part II turns to the so-called “existen-

tial challenges” to the law—the challenges that have threatened the entire ACA.

Part III then moves to narrower challenges to speciﬁc aspects of the law: those

brought by insurers, those challenging the ACA’s contraception and nondiscrimi-

nation provisions, those seeking to defend the law against a new and hostile

President, and many more challenges in state and federal courts. We conclude in

Part IV with some additional reﬂections on what the litigation landscape reveals

about the ACA and the many areas of law, regulation, and American behavior

that it has touched.

I. B

RIEF OVERVIEW OF THE ACA

The ACA’s governance structure has provided the impetus for much of the liti-

gation. In this vein, the most important thing to emphasize is that the ACA largely

built on what came before it—namely, a highly fragmented American healthcare

system in which different swaths of the population received their health beneﬁts

from different programs. The elderly and disabled had Medicare, a federal gov-

ernment program; certain categories of low-income individuals had Medicaid, a

government program jointly administered by states and the federal government;

veterans had their federal healthcare system; about half the population obtained

health insurance through their employers (who beneﬁtted from a tax deduction

collectively worth $200 billion a year);

and the rest either bought insurance in

the (expensive, hard-to-navigate, and often-discriminatory) private individual

market or rolled the dice, went uninsured, and relied on emergency rooms and

charity care.

The politics of enactment—including President Obama’s (ultimately unachi-

eved)

desire to get a bipartisan bill

and stinging memories of the failed health-

care reform effort by the Clinton Administration in 1993–1994

—meant that the

ACA would not wipe the slate clean and build a uniﬁed program. Instead, the law

from an idea that was too progressive to make it into the ACA in 2008 to one of the more modest

healthcare proposals on the table today.”).

14. Two ACA provisions assisting Medicare–Medicaid “dual eligibles” are sections 2601 and 2602.

15. See Abbe R. Gluck & Nicole Huberfeld, What Is Federalism in Healthcare For?, 70 S

TAN. L.

EV. 1689, 1708–09 (2018).

16. See Gluck & Scott-Railton, supra note 13, at 503–04.

17. See Timothy S. Jost, Health Care Reform and a Failed Vision of Bipartisanship, 35 H

EALTH AFF.

1748, 1748–49 (2016) (describing failed efforts to create a bipartisan reform bill).

18. See generally Theda Skocpol, The Rise and Resounding Demise of the Clinton Plan, 14 H

EALTH

AFF. 66 (1995) (describing the Clinton Administration’s inability to pass healthcare reform).

2020] THE AFFORDABLE CARE ACT’S LITIGATION DECADE 1475

kept the fragmented structure of the system but increased access and beneﬁts at

every level. Medicare saw a signiﬁcant increase in its drug beneﬁts,

The ACA closed the Medicare prescription drug “doughnut hole,” in which beneﬁciaries

previously faced a gap in coverage for prescription drug costs. See J

ULIETTE CUBANSKI ET AL., KAISER

FAMILY FOUND., WHAT ARE THE IMPLICATIONS OF REPEALING THE AFFORDABLE CARE ACT FOR

MEDICARE SPENDING AND BENEFICIARIES? 2 (2016), http://ﬁles.kff.org/attachment/Issue-Brief-What-

Are-the-Implications-of-Repealing-the-Affordable-Care-Act-for-Medicare-Spending-and-Beneﬁciaries

[https://perma.cc/5W9C-S2EH]. Previously, Medicare covered prescription drug costs up to a certain

cost threshold, and then beneﬁciaries had to pay the rest of their yearly drug costs out of pocket until

reaching a certain level of catastrophic prescription drug costs. K

AISER FAMILY FOUND., EXPLAINING

HEALTH CARE REFORM: KEY CHANGES TO THE MEDICARE PART D DRUG BENEFIT COVERAGE GAP 1

(2010), https://www.kff.org/wp-content/uploads/2013/01/8059.pdf [https://perma.cc/9RB6-3QDS].

and co-pays

for many preventive services were eliminated.

Medicaid was to be expanded to

populations long excluded from categorical eligibility (namely, nonelderly child-

less adults, including men, with incomes up to 138% of the federal poverty level

(FPL)).

Individuals in the private market with incomes up to 400% FPL

(approximately $100,000 for a family of four) would receive subsidies to make

the purchase of insurance more affordable and would buy that insurance on newly

created and regulated insurance markets—the “exchanges”—designed to make

options more transparent for consumers and to ensure that insurance so met a

minimum standard of coverage.

See, e.g., Patient Protection and Affordable Care Act § 1321(a) (codiﬁed at 42 U.S.C. § 18041(a)

(2012)) (detailing the exchange structure); id. § 1401(a) (codiﬁed at 42 U.S.C. § 36B (2012)) (detailing

the structure and eligibility levels for premium tax credits to make exchange coverage more affordable);

see also T

IMOTHY STOLTZFUS JOST, THE COMMONWEALTH FUND, HEALTH INSURANCE EXCHANGES AND

THE

AFFORDABLE CARE ACT: KEY POLICY ISSUES 6 (2010), https://www.commonwealthfund.org/sites/

default/ﬁles/documents/___media_ﬁles_publications_fund_report_2010_jul_1426_jost_hlt_insurance_

exchanges_aca.pdf [https://perma.cc/7EEZ-425D].

To support these dramatic changes, the ACA

also included a series of stabilization payments to insurers designed to smooth

the transition and keep the out-of-pocket costs to consumers relatively low.

Litigation would develop around both the Medicaid expansion and the concept of

the single uniﬁed insurance pool that the exchanges were designed to create, as

well as around the payments the law promised to insurers.

The ACA also included signiﬁcant new insurance protections regardless of

what program individuals were in. Insurers could no longer deny

or rescind

coverage for a pre-existing health condition, impose lifetime or annual caps,

19.

20. See C

UBANSKI ET AL., supra note 19, at 2.

21. See Patient Protection and Affordable Care Act, Pub. L. No. 111-148, § 2001(a)(1), 124 Stat. 119,

271 (2010) (codiﬁed at 42 U.S.C. § 1396a(a)(10)(A)(i)(VIII) (2012)) (creating a new Medicaid

eligibility category for those with incomes up to 133% FPL). The Health Care and Education

Reconciliation Act of 2010 immediately amended the ACA and created a 5% income disregard, raising

eligibility for the new category to 138% of the FPL. See Pub. L. No. 111-152, § 1004(e)(2), 124 Stat.

1029, 1036 (codiﬁed at 42 U.S.C. § 1396a(e)(14)(I)(i) (2012)).

22.

23. See infra Part III for further discussion of these provisions of the ACA (known as the “three Rs”):

risk corridor payments, risk-adjustment payments, and transitional reinsurance.

24. Patient Protection and Affordable Care Act § 1201(4) (codiﬁed at 42 U.S.C. § 300gg-1).

25. Id. § 1001(5) (codiﬁed at 42 U.S.C. § 300gg-12).

26. Id. (codiﬁed at 42 U.S.C. § 300gg-11).

1476 THE GEORGETOWN LAW JOURNAL [Vol. 108:1471

charge a co-pay for important preventive care.

One such service for which co-

pays were eliminated, and which would prove a focal point for litigation, was

contraception.

Finally, to strengthen the insurance markets and help pay for all of these

reforms, the ACA imposed a “shared responsibility requirement”—the

require-

ment

that all individuals, with some exceptions,

Those exempted from the individual mandate penalty include those with income-related

exemptions (when the lowest-priced plan available, either a marketplace or job-based plan, would cost

more than 8.05% of one’s household income, or when one’s income is below the tax ﬁling threshold);

hardship exemptions (including homelessness, eviction, domestic violence, ﬁling for bankruptcy, and

natural or human-caused disasters); a temporary lack of insurance for no more than two months out of

the year; an income below 138% FPL for individuals who live in a state that did not expand Medicaid;

members of a federally recognized tribe or those eligible for services through an Indian Health Services

provider; members of a recognized healthcare-sharing ministry; members of a recognized religious sect

with religious objections to insurance including Social Security and Medicare; incarcerated individuals;

U.S. citizens living abroad; certain types of noncitizens; and those not lawfully present. See Health

Coverage Exemptions, Forms & How to Apply, H

EALTHCARE.GOV, https://www.healthcare.gov/health-

coverage-exemptions/forms-how-to-apply/ [https://perma.cc/B853-D8RZ] (last visited Mar. 20, 2020);

see also 26 U.S.C. § 5000A(d)–(e) (2017) (providing statutory exemption provisions), invalidated by

Texas v. United States, 945 F.3d 355 (5th Cir. 2019), cert. granted sub nom. California v. Texas, 140 S.

Ct. 1262 (2020) (mem.).

obtain insurance coverage or

pay a tax.

Bringing as many additional people as possible into the shared risk

pool was intended to stabilize the insurance markets—which cannot function if

only the sick obtain insurance—and lower prices for all. Colloquially known as

the “individual mandate,” this requirement became the focus of ACA resistance,

the main target of legal challenges, and the primary symbol of government

overreach.

The ACA is a 2,000-page law and has many other provisions aimed at system

reform, including incentives for physicians to move to new payment models and

improve quality,

medical workforce training provisions,

a prevention and pub-

lic

health fund,

and much more. But the main structural components outlined

above have, thus far, been the most fertile terrain for litigation.

II. T

HE EXISTENTIAL CHALLENGES: NFIB, KING, AND TEXAS

Thus far, there have been three signiﬁcant “existential” challenges to the ACA—

lawsuits that threaten the existence of the entire 2,000-page law. The ﬁrst lawsuit

was partially successful, the second was unsuccessful, and the third is pending.

27. Id. (codiﬁed at 42 U.S.C. § 300gg-13).

28. See infra Section III.C.1.

29.

30. 26 U.S.C. § 5000A (creating a requirement to maintain minimum essential health coverage).

31. See, e.g., Patient Protection and Affordable Care Act § 3021(a) (codiﬁed as amended at 42 U.S.C.

§ 1315a (2012)) (creating the Center for Medicare and Medicaid Innovation (CMMI)).

32. These provisions can be found in Title V of the Patient Protection and Affordable Care Act,

which is named “Health Care Workforce.” See, e.g., id. §§ 5102, 5301 (codiﬁed at 42 U.S.C. §§ 294r,

293k (2012)) (establishing state healthcare workforce-development grants and supporting and

developing primary care training programs).

33. Id. § 4002 (codiﬁed at 42 U.S.C. §300u-11 (2012)).

2020] THE AFFORDABLE CARE ACT’S LITIGATION DECADE 1477

A. NFIB: A CONSTITUTIONAL CHALLENGE TO THE INDIVIDUAL MANDATE AND THE

MEDICAID EXPANSION

The focus of the challenge ﬁled by fourteen states on the date of the ACA’s

enactment

(eventually twenty-six states total) was the constitutionality of the

individual mandate.

Although the mandate was originally the brainchild of the

Heritage Foundation and pioneered on the ground by former Republican

Governor (and later presidential candidate) Mitt Romney in Massachusetts, it

quickly became the focal point of ACA opposition, offensive to conservatives

and libertarians as “an attack on freedom.”

Michael Cooper, Conservatives Sowed Idea of Health Care Mandate, Only to Spurn It Later,

N.Y. T

IMES (Feb. 14, 2012), https://www.nytimes.com/2012/02/15/health/policy/health-care-mandate-

was-ﬁrst-backed-by-conservatives.html; see Paul Starr, A Health Insurance Mandate with a Choice,

N.Y. T

IMES (Mar. 3, 2010), https://www.nytimes.com/2010/03/04/opinion/04starr.html.

The opponents’ legal argument was that Congress lacked the authority under

its power to regulate interstate commerce to order all Americans to obtain health

insurance or else pay a penalty—they argued this was regulating “inaction,” not

“commerce.”

Initially dismissed as a nonstarter, the politics of the moment and

extremely successful messaging by the suit’s supporters moved the claims (ﬁled

in federal district courts in Florida, Michigan, Pennsylvania, Virginia, and

Washington, D.C.

) from being, as Professor Jack Balkin put it at the time, “off

the wall to on the wall.”

Jack M. Balkin, From Off the Wall to On the Wall: How the Mandate Challenge Went

Mainstream, A

TLANTIC (June 4, 2012), https://www.theatlantic.com/national/archive/2012/06/from-off-

the-wall-to-on-the-wall-how-the-mandate-challenge-went-mainstream/258040/.

Proponents of these lawsuits relentlessly compared the

34. Thirteen states sued together in Florida. See Complaint, Florida ex rel. Bondi v. U.S. Dep’t of

Health & Human Servs., supra note 1, at 1–2; The states included Alabama, Colorado, Florida, Idaho,

Louisiana, Michigan, Nebraska, Pennsylvania, South Carolina, South Dakota, Texas, Utah, and

Washington. Id. Virginia sued on its own. See Complaint, Virginia ex rel. Cuccinelli v. Sebelius, supra

note 1.

35. Nat’l Fed’n of Indep. Bus. v. Sebelius (NFIB), 567 U.S. 519, 520 (2012).

36.

37. See NFIB, 567 U.S. at 552–61.

38. Florida ex rel. Bondi v. U.S. Dep’t of Health & Human Servs., 780 F. Supp. 2d 1256 (N.D. Fla.

2011), aff’d in part, rev’d in part sub nom. Florida ex rel. Att’y Gen. v. U.S. Dep’t of Health & Human

Servs., 648 F.3d 1235 (11th Cir. 2011), aff’d in part, rev’d in part sub nom. NFIB, 567 U.S. 519 (2012);

Thomas More Law Ctr. v. Obama, 720 F. Supp. 2d 882 (E.D. Mich. 2010), aff’d, 651 F.3d 529 (6th Cir.

2011); Goudy-Bachman v. U.S. Dep’t of Health & Human Servs., 811 F. Supp. 2d 1086 (M.D. Pa.

2011); Liberty Univ., Inc. v. Geithner, 753 F. Supp. 2d 611 (W.D. Va. 2010), vacated, 671 F.3d 391 (4th

Cir. 2011), vacated, 568 U.S. 1022 (2012), and aff’d sub nom. Liberty Univ., Inc. v. Lew, 733 F.3d 72

(4th Cir. 2013); Virginia ex rel. Cuccinelli v. Sebelius, 728 F. Supp. 2d 768 (E.D. Va. 2010), vacated,

656 F.3d 253 (4th Cir. 2011); Mead v. Holder, 766 F. Supp. 2d 16 (D.D.C. 2011), aff’d sub nom. Seven-

Sky v. Holder, 661 F.3d 1 (D.C. Cir. 2011).

Some cases were dismissed on standing grounds. See, e.g., Bellow v. U.S. Dep’t of Health & Human

Servs., No. 1:10-CV-165, 2011 WL 2462205, at *1 (E.D. Tex. June 20, 2011); Kinder v. Geithner, No.

1:10-cv-101-RWS, 2011 WL 1576721, at *4–5, *7–8 (E.D. Mo. Apr. 26, 2011), aff’d, 695 F.3d 772 (8th

Cir. 2012); Purpura v. Sebelius, No. 10-04814, 2011 WL 1547768, at *9 (D.N.J. Apr. 21, 2011), aff’d,

446 F. App’x 496 (3d Cir. 2011); Peterson v. United States, 774 F. Supp. 2d 418, 420 (D.N.H. 2011);

N.J. Physicians, Inc. v. Obama, 757 F. Supp. 2d 502, 510 (D.N.J. 2010), aff’d sub nom. N.J. Physicians,

Inc. v. President of the U.S., 653 F.3d 234 (3d Cir. 2011); Shreeve v. Obama, No. 1:10-CV-71, 2010 WL

4628177, at *4 (E.D. Tenn. Nov. 4, 2010); Baldwin v. Sebelius, No. 10CV1033-DMS-(WMC), 2010

WL 3418436, at *4–5 (S.D. Cal. Aug. 27, 2010), aff’d, 654 F.3d 877 (9th Cir. 2011).

39.

1478 THE GEORGETOWN LAW JOURNAL [Vol. 108:1471

individual mandate to a hypothetical requirement that Congress could “make

people buy broccoli,”

See James B. Stewart, How Broccoli Landed on Supreme Court Menu, N.Y. TIMES (June 13,

2012) (quoting Justice Antonin Scalia), https://www.nytimes.com/2012/06/14/business/how-broccoli-

became-a-symbol-in-the-health-care-debate.html.

an analogy that resonated. Early victories in Virginia and

Florida lent momentum to the litigation, and although the ACA survived in the

U.S. Courts of Appeals for the Fourth, Sixth, and D.C. Circuits,

the U.S. Court

of Appeals for the Eleventh Circuit ruled the mandate unconstitutional in August

2011 but left the rest of the ACA in place.

(The challengers had argued that the

mandate was essential to the entire 2,000-page law and the entire ACA had to fall

with it, but the Eleventh Circuit found the mandate completely severable from

the rest of the law.

) Some of these cases had their own outsized political va-

lence; two Republican-appointed judges who wrote opinions that did not strike

down the ACA were said at the time to be blacklisted from possible nomination

to the U.S. Supreme Court.

See, e.g., Scott Lemieux, Brett Kavanaugh’s Supreme Court Nomination Is the Result of Years of

Unopposed Conservative Organizing, NBC N

EWS (July 10, 2018, 11:56 AM), https://www.nbcnews.

com/think/opinion/brett-kavanaugh-s-supreme-court-nomination-result-years-unopposed-conservative-

ncna890226 [https://perma.cc/FG6M-7PYJ] (claiming that Judge Jeff Sutton of the Sixth Circuit “lost

favor among conservative legal activists” because of his 2012 decision upholding the ACA); Alex

Pappas, Supreme Court Shortlister Kavanaugh’s Role in ObamaCare’s Survival Fiercely Debated by

Conservatives, F

OX NEWS (Jul. 9, 2018), http://www.foxnews.com/politics/2018/07/09/supreme-court-

shortlister-kavanaughs-role-in-obamacares-survival-ﬁercely-debated-by-conservatives.html [https://

perma.cc/2TSB-JNAZ] (describing conservative criticism of then-Judge Brett Kavanaugh’s avoidance

of taking a position on the ACA in the D.C. Circuit).

One of these judges was now-Justice Brett

Kavanaugh.

The Supreme Court granted review of three cases in 2011, consolidated under

the name National Federation of Independent Business v. Sebelius (NFIB),

and

accorded the case an unprecedented three days of oral argument.

The Court’s

grant of review also surprised some experts by asking the parties to brief not only

40.

41. The Sixth and D.C. Circuits upheld the individual mandate under Congress’s commerce power.

See Seven-Sky, 661 F.3d at 4, 18, 20, abrogated by NFIB, 567 U.S. 519; Thomas More Law Ctr., 651

F.3d at 549, abrogated by NFIB, 567 U.S. 519. The Fourth Circuit found that the challenge was barred

by the Anti-Injunction Act. See Liberty Univ., Inc., 671 F.3d at 401–03 (4th Cir. 2011), abrogated by

NFIB, 567 U.S. 519.

42. Florida ex rel. Att’y Gen., 648 F.3d at 1328.

43. See id. at 1323 (“In light of the stand-alone nature of hundreds of the Act’s provisions and their

manifest lack of connection to the individual mandate, the plaintiffs have not met the heavy burden

needed to rebut the presumption of severability. We therefore conclude that the district court erred in its

wholesale invalidation of the Act.”).

44.

45. See Seven-Sky, 661 F.3d at 21 (Kavanaugh, J., dissenting) (arguing the D.C. Circuit lacked

jurisdiction and offering no opinion on the merits of the constitutional claim about the individual

mandate).

46. The Supreme Court granted certiorari for three cases from the Eleventh Circuit: National

Federation of Independent Business v. Sebelius, Florida v. Department of Health & Human Services,

and Department of Health & Human Services v. Florida, all at 565 U.S. 1033 (2011).

47. See Clement, supra note 8, at 167; Donald B. Verrilli, The ACA and the Courts: Two

Perspectives, Part One, in T

HE TRILLION DOLLAR REVOLUTION, supra note 8, at 145, 154.

2020] THE AFFORDABLE CARE ACT’S LITIGATION DECADE 1479

the mandate question but also the question of whether the ACA’s Medicaid

expansion was unconstitutional—an issue that had received little legal attention

up to that point.

See, e.g., Sara Rosenbaum & Timothy M. Westmoreland, The Supreme Court’s Surprising

Decision on the Medicaid Expansion: How Will the Federal Government and States Proceed?, 31

EALTH AFF. 1663, 1663 (2012), https://www.healthaffairs.org/doi/pdf/10.1377/hlthaff.2012.0766

[https://perma.cc/BL2B-864V] (calling the NFIB Medicaid holding “a move that shocked almost

everyone”).

The Medicaid expansion sought to end the patchwork across

states that had left many Americans completely uninsured.

Before the ACA,

states did not have to cover childless adults under Medicaid if they did not wish

to do so, a choice that left gaping holes in the insured population when it came to

adult men in particular.

The ACA gave states a choice between expanding

Medicaid to cover all individuals up to 138% of the federal poverty level or losing

all their existing Medicaid funding.

The ACA’s challengers won in part and lost in part. Five Justices agreed that

Congress did not have power under the Commerce Clause to enact the mandate,

largely accepting the challengers’ view that the mandate was forcing entry into a

market and regulating inaction instead of regulating commerce.

One of those

ﬁve was Chief Justice Roberts, who did not join the dissent. Even though Roberts

refused to accept the principle that healthcare was a unique good, or that

Congress could “compel citizens to act as the Government would have them act”

because the failure to purchase insurance detrimentally affects others in the

healthcare market,

he found different grounds on which to uphold the law.

Speciﬁcally, the Chief Justice saved the ACA by reasoning that the mandate was

a permissible exercise of Congress’s taxing power, if not (as his dicta implied) its

Commerce Clause power.

The four dissenting justices refused to accept the

Chief Justice’s saving construction of the mandate as a tax.

The remaining four

Justices would have upheld the mandate under Congress’s commerce power.

The Medicaid holding was more dramatic and stunned many. Seven Justices

concluded that the threat to withhold Medicaid funding from states that did not

48.

49. See Nicole Huberfeld, The Universality of Medicaid at Fifty, 15 Y

ALE J. HEALTH POL’Y L. &

THICS 67, 82–83 (2015).

50. See Nicole Huberfeld, Federalizing Medicaid, 14 U. P

A. J. CONST. L. 431, 450 (2011).

51. See Patient Protection and Affordable Care Act, Pub. L. No. 111-148, § 2001(a)(1), 124 Stat. 119,

271 (2010) (codiﬁed at 42 U.S.C. § 1396a(10)(viii) (2012) (creating a new Medicaid eligibility

category).

52. See NFIB, 567 U.S. 519, 558 (2012). A majority likewise found Congress lacked the power to do

so under the Necessary and Proper Clause. See id. at 560.

53. Id. at 554.

54. See id. at 574. Some have since argued that the mandate was more precisely understood as a tax

penalty to ensure compliance with maintaining health insurance, especially because the Department of

Justice stated that no one could sue a person to make him or her maintain minimum essential coverage.

See Opening Brief of Intervenor the U.S. House of Representatives at 12–20, Texas v. United States,

945 F.3d 355 (5th Cir. 2019), 2019 WL 1458855; State Defendants’ Opening Brief at 28–29, Texas v.

United States, 945 F.3d 355 (5th Cir. 2019), 2019 WL 1458854.

55. NFIB, 567 U.S. at 656, 668 (Scalia, Kennedy, Thomas & Alito, J.J., dissenting) (“[T]o say that

the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it.”).

56. Id. at 589 (Ginsburg, J., concurring in part, concurring in the judgment, and dissenting in part).

1480 THE GEORGETOWN LAW JOURNAL [Vol. 108:1471

expand the program was unconstitutional. The Chief Justice’s plurality opinion

found that even though Congress had the right to amend the Medicaid program,

the ACA’s change was too big—it was one of “kind, not merely degree.”

Moreover, given the centrality of Medicaid to many state budgets, the Court held

that the choice between expanding and losing all Medicaid funds was not a choice

at all but, rather, a “gun to the head”—an “economic dragooning that leaves the

States with no real option but to acquiesce in the Medicaid expansion”—and, as

such, was unconstitutionally coercive on the states in violation of the Tenth

Amendment and Congress’s spending power.

The four Justices who found the

mandate unconstitutional would have struck the entire Medicaid expansion, too,

as a coercive offer “no states could refuse.”

But as to the remedy, there were ﬁve

justices total (the plurality plus Justices Ginsburg and Sotomayor, who would

have upheld the expansion) in agreement that the proper remedy was not to strike

down the Medicaid expansion but to allow states to opt out of it without penalty.

The litigation itself, and then the ruling, has had enormous implications. At the

level of legal practice, the case not only had an unprecedented number of hours of

oral argument, but it also had two appointed amici and a level of media attention

that surprised and overwhelmed even the two U.S. Solicitors General arguing it:

President Obama’s Solicitor General Donald Verrilli and former Solicitor

General Paul Clement, who argued the other side.

NFIB also has inﬂuenced the

shape of other prominent cases outside of healthcare. As Verrilli and Clement

each have noted, the NFIB litigation largely pioneered the now-common practice

of orchestrated writings on blogs and opinion pages before an important Supreme

Court case, designed to inﬂuence the framing and outcome.

Clement has further

observed that the twenty-six-state challenge to the Medicaid expansion “was like-

wise the precursor to a series of high-proﬁle constitutional challenges by states

against major federal-government initiatives,” and that the Chief Justice’s vote

on the individual mandate “has shaped the perception that he is the new ‘swing

Justice’ on the current Court.”

The ruling itself had constitutional signiﬁcance on several fronts. First,

although only four Justices dissented to hold that the mandate was impermissible

under the Commerce Clause, the Chief Justice went out of his way to say that he

agreed with the dissenters on that front—arguably in many pages of dicta—

57. Justices Breyer and Kagan joined this part (Part IV) of Roberts’s opinion. See id. at 529 (plurality

opinion).

58. Id. at 583.

59. Id. at 575–85.

60. Id. at 689 (Scalia, Kennedy, Thomas & Alito, J.J., dissenting).

61. Id. at 585–88 (plurality opinion); id. at 645–46 (Ginsburg, J., dissenting). Justices Ginsburg and

Sotomayor disagreed with the seven Justices who found the mandatory expansion unconstitutional, but

joined the Chief Justice, and Justices Breyer and Kagan, on severability to save the statute.

62. See Clement, supra note 8, at 167–70; Verrilli, supra note 47, at 154–55.

63. See Clement, supra note 8, at 174–75; Verrilli, supra note 47, at 150.

64. Clement, supra note 8, at 175.

2020] THE AFFORDABLE CARE ACT’S LITIGATION DECADE 1481

before ﬁnding an alternative basis for the mandate in the taxing power.

Consequently, as a practical matter, there now appear to be ﬁve votes on the

Court for the proposition that Congress cannot use its commerce power to compel

entry into a market, and perhaps also for the proposition that healthcare is not a

unique good or unique kind of market that can overcome that proposition.

There also is now a precedent for the proposition that whether an act of

Congress falls

within the taxing power is a question of law for the courts to decide

for themselves, rather than a question that Congress itself decides. ACA

support-

ers

afﬁrmatively did not label the ACA a tax; President Obama promised the law

would not bring new taxes, and Democratic drafts in the Senate actually deleted

the word “tax” or converted it to “penalty” at least a dozen times in the individual

mandate section of the Senate ﬁnance bill.

At least one lower court judge—

Judge Vinson of the U.S. District Court for the Northern District of Florida, who

would have struck down the ACA in its entirety—held that the mandate could not

be construed as a tax for precisely those reasons: to do so would allow Congress

to enact a tax with no accountability for doing so.

But the Chief Justice con-

cluded

the construction was within the Court’s power.

Finally, the Medicaid

holding appears to be the ﬁrst time that the Court has

invalidated a federal spending program on grounds of coercing the states.

See K

AISER FAMILY FOUND., A GUIDE TO THE SUPREME COURT’S AFFORDABLE CARE ACT DECISION

6 (2012), https://www.kff.org/wp-content/uploads/2013/01/8332.pdf [https://perma.cc/3N45-58F3];

Rosenbaum & Westmoreland, supra note 48, at 1663, 1667; see also NFIB, 567 U.S. at 625 (Ginsburg,

J., concurring in part, concurring in the judgment in part, and dissenting in part) (“The Chief Justice

therefore—for the ﬁrst time ever—ﬁnds an exercise of Congress’ spending power unconstitutionally

coercive.”). Prior to NFIB, the Supreme Court struck down federal laws on the grounds that they

impermissibly commandeered state and local ofﬁcials in violation of federalism principles. See Printz v.

United States, 521 U.S. 898, 935 (1997); New York v. United States, 505 U.S. 144, 188 (1992).

Still,

the Court refused to articulate a new legal standard. The Chief Justice wrote:

“We have no need to ﬁx a line . . . . It is enough for today that wherever that line

may be, this statute is surely beyond it. Congress may not simply ‘conscript state

[agencies] into the national bureaucratic army’ . . . .”

Since NFIB, litigants have

used the Court’s Medicaid holding to argue that other federal programs, particu-

larly in the area of immigration, violate the Court’s anticoercion and anticom-

mandeering principles with mixed success.

Scholars have observed that the

65. NFIB, 567 U.S. at 563, 574. For scholars of statutory interpretation, the Chief deployed an

interpretive method that some thought extinct—“classic” constitutional avoidance—in which the Court

states one reading of a law would be unconstitutional and so chooses a different one. See W

ILLIAM N.

SKRIDGE JR., ABBE R. GLUCK & VICTORIA F. NOURSE, STATUTES, REGULATION, AND INTERPRETATION

517 (2014). Modern cases have eschewed this approach due to the dicta and advisory opinion problems

it raises and instead prefer a formulation that one reading might raise constitutional concerns, thereby

making an alternate reading preferable. Id. at 517–18.

66. Compare S. 1796, 111th Cong. § 5000A (2009) (using the term “tax”), with H.R. 3590, 111th

Cong. § 5000A (2009) (using the term “penalty”).

67. See Florida ex rel. McCollum v. U.S. Dep’t of Health & Human Servs., 716 F. Supp. 2d 1120,

1142 (N.D. Fla. 2010).

68.

69. NFIB, 567 U.S. at 585 (plurality opinion) (alteration in original).

70. See, e.g., Mayhew v. Burwell, 772 F.3d 80, 91 (1st Cir. 2014) (holding that the ACA’s Medicaid

maintenance-of-effort requirement was not unconstitutionally coercive); New York v. U.S. Dep’t of

1482 THE GEORGETOWN LAW JOURNAL [Vol. 108:1471

NFIB holding “casts a constitutional pall” and presents problems for future social

policy that relies on the use of conditional spending to achieve Congress’s

goals.

Right after NFIB, there were a few new constitutional challenges to the individ-

ual

mandate and the employer mandate based on the Court’s new tax theory.

Employers face an insurance mandate under the ACA, too. Under ACA section

1513, a large employer—employing ﬁfty people or more—must pay a penalty if it

does not offer full-time employees an opportunity to enroll in affordable mini-

mum essential coverage, i.e, coverage that would satisfy the individual man-

date.

Some plaintiffs alleged that if both of these mandates were now to be

understood as part of a revenue-raising statute, the ACA would have been

enacted in violation of the Constitution’s Origination Clause (which states in

part that “[a]ll Bills for raising Revenue shall originate in the House

of Representatives”

) because the ACA did not begin in the House of

Health & Human Servs., 414 F. Supp. 3d 475, 566 (S.D.N.Y. 2019) (ﬁnding HHS “conscience” rule

violated the requirement established in NFIB that the “‘ﬁnancial inducement offered by Congress’ must

not be ‘impermissibly coercive’”); Tennessee v. U.S. Dep’t of State, 329 F. Supp. 3d 597, 626–29 (W.D.

Tenn. 2018) (granting federal government’s motion to dismiss Tennessee’s challenge to federal laws

requiring states to provide Medicaid to refugees or risk losing all their Medicaid funding, ﬁnding the

laws did not coerce the state in violation of the Tenth Amendment), aff’d sub nom. Tennessee ex rel.

Tenn. Gen. Assembly v. U.S. Dep’t of State, 931 F.3d 499 (6th Cir. 2019).

The New York district court judge who recently vacated the Trump Administration’s “conscience”

rules, which will be discussed in greater detail in section III.B., based his ﬁnding that the rules violated

the Spending Clause on the NFIB Medicaid holding. See New York v. U.S. Dep’t of Health & Human

Servs., 414 F. Supp. 3d at 566. Several cases have challenged Trump’s immigration policies, such as the

Administration’s threats to cut funding for sanctuary cities, as unconstitutionally coercive against the

states. See, e.g., City of Los Angeles v. Barr, 929 F.3d 1163, 1176 (9th Cir. 2019); New York v. Dep’t of

Justice, 343 F. Supp. 3d 213, 225, 237 (S.D.N.Y. 2018), rev’d, 951 F.3d 84 (2d Cir. 2020); City of

Chicago v. Sessions, 321 F. Supp. 3d 855, 861, 867 (N.D. Ill. 2018); California ex rel. Becerra v.

Sessions, 284 F. Supp. 3d 1015, 1034–35 (N.D. Cal. 2018), reconsideration denied sub nom. California

ex rel. Becerra v. Sessions, No. 17-cv-04701-WHO, 2018 WL 3399214 (N.D. Cal. Apr. 24, 2018);

County of Santa Clara v. Trump, 275 F. Supp. 3d 1196, 1201 (N.D. Cal. 2017), aff’d in part, vacated in

part, remanded sub nom. City & County of San Francisco v. Trump, 897 F.3d 1225 (9th Cir. 2018); City

of Philadelphia v. Sessions, 280 F. Supp. 3d 579, 651 (E.D. Pa. 2017).

71. Andrew B. Coan, Commandeering, Coercion, and the Deep Structure of American Federalism,

95 B.U. L. R

EV. 1, 13, 17 (2015); Michael J. Graetz & Jerry L. Mashaw, Constitutional Uncertainty and

the Design of Social Insurance: Reﬂections on the Obamacare Case, 7 H

ARV. L. & POL’Y REV. 343, 364

(2013).

72. See infra note 75 for constitutional challenges to the individual mandate based on the Origination

Clause. In other post-NFIB cases, courts rejected other constitutional challenges to the individual

mandate including takings and substantive due process claims. See Coons v. Lew, 762 F.3d 891 (9th Cir.

2014), cert denied, 575 U.S. 935 (2015) (mem.) (rejecting a substantive due process claim that the

individual mandate violated rights to medical autonomy and nondisclosure of personal medical

information); Ass’n of Am. Physicians & Surgeons v. Sebelius, 901 F. Supp. 2d 19 (D.D.C. 2012), aff’d,

746 F.3d 468 (D.C. Cir. 2014) (rejecting takings and substantive due process challenges to the

individual mandate).

73. Patient Protection and Affordable Care Act, Pub. L. No. 111-148, § 1513(a), 124 Stat. 119, 253

(2010) (codiﬁed at 26 U.S.C. § 4980H(a) (2012)). At least one employee must have been certiﬁed to the

employer as qualifying for premium tax credits. Id.

74. U.S. C

ONST. art. I, § 7, cl. 1.

2020] THE AFFORDABLE CARE ACT’S LITIGATION DECADE 1483

Representatives.

The bill that became the ACA, H.R. 3590, had indeed originated

in the House, but the Senate stripped out the bill’s original language and replaced it

with its own ACA language. In one case regarding the individual mandate, Sissel v.

United States Department of Health and Human Services, this raised enough of an

Origination Clause issue that the D.C. Circuit split over how to handle it. One group

of judges relied on the theory that the individual mandate’s purpose was not

actually to raise revenue and so did not implicate the Origination Clause.

A group

of en banc denial dissenters, led by then-Judge Kavanaugh, would have dismissed

the Origination Clause claim on the quite different ground that H.R. 3590 in its

original form was a bill for raising revenue.

In 2013, the Fourth Circuit rejected a Commerce Clause challenge to the

employer mandate, concluding that Congress had authority under the Commerce

Clause to enact the employer mandate as a regulating condition of employment

for large employers.

In Hotze v. Burwell, a case raising Origination Clause and

Takings Clause challenges to both the individual and employer mandate, the Fifth

Circuit held that the challenge was barred by the Tax Anti-Injunction Act, a statute

that bars pre-enforcement challenges to tax statutes.

The courts have also held,

as a matter of Commerce Clause and Tenth Amendment jurisprudence, that state

and local governments, as large employers, are subject to the employer mandate.

B. STRIKING AT “BITS AND PIECES OF THE LAW”: A NEW LEGAL STRATEGY AND

KING V. BURWELL

In the normal trajectory of a controversial statutory enactment followed by

legal challenge, a successful Supreme Court ruling followed by reelection of the

party supporting the law tends to end the existential threats to the law and allow

the government to move onto implementation. Many states halted ACA imple-

mentation in the run-up to NFIB, a development that dramatically complicated

the launch of the law for the U.S. Department of Health and Human Services

(HHS). The NFIB ruling mostly upheld the law and the subsequent 2012 reelec-

tion of President Obama, as well as Democratic gains in the Senate and House,

seemed to put the question of the ACA’s future to rest.

75. Bank v. U.S. Dep’t of Health & Human Servs., 708 F. App’x 43, 44 (2d Cir. 2018) (mem.); Hotze

v. Burwell, 784 F.3d 984, 989–90 (5th Cir. 2015); Sissel v. U.S. Dep’t of Health & Human Servs., 760

F.3d 1, 4 (D.C. Cir. 2014); Ass’n of Am. Physicians & Surgeons v. Sebelius, 746 F.3d 468, 470–71

(D.C. Cir. 2014).

76. Sissel, 760 F.3d at 10.

77. Sissel v. U.S. Dep’t of Health & Human Servs., 799 F.3d 1035, 1049 (D.C. Cir. 2015)

(Kavanaugh, J., dissenting from denial of rehearing en banc) (mem.).

78. Liberty Univ., Inc. v. Lew, 733 F.3d 72, 76 (4th Cir. 2013).

79. 784 F.3d at 986. The court had held that Dr. Hotze himself lacked standing to challenge the

individual mandate, even on Origination Clause grounds, but that his employer did have standing to

challenge the employer mandate on those and other grounds. Id.

80. See, e.g., Indiana v. IRS, 309 F. Supp. 3d 603, 609 (S.D. Ind. 2018); Oklahoma ex rel. Pruitt v.

Sebelius, No. CIV-30-RAW, 2013 WL 4052610, at *9 (E.D. Okla. Aug. 12, 2013).

81. See Gluck & Scott-Railton, supra note 13, at 522.

1484 THE GEORGETOWN LAW JOURNAL [Vol. 108:1471

But the ACA is no average law. As former Solicitor General Verrilli—who

argued NFIB for the Obama administration—has written, the ACA’s opponents

refused to accept the decision as legitimate and did not come around to the

politi-

cal

advantages of working with the law.

Instead, the ACA’s challengers largely

moved away from constitutional challenges to the ACA and utilized a different

legal strategy to try to eliminate the law nonetheless. The new strategy was to

pull the statute apart by focusing on “bits and pieces of the law.”

Abbe R. Gluck, Imperfect Statutes, Imperfect Courts: Understanding Congress’s Plan in the Era

of Unorthodox Lawmaking, 129 H

ARV. L. REV. 62, 64 (2015) (quoting Am. Enter. Inst., Who’s in

Charge? More Legal Challenges to the Patient Protection and Affordable Care Act at 1:31:45,

(Mar. 11, 2014), http://www.youtube.com/watch?&v=C7nRpJURvE4).

At one widely reported critical strategy meeting following NFIB, opponents

focused on what became a theme: destruction of the ACA at all costs. A key

speaker exhorted the crowd to use any technical weaknesses or loopholes in the

law, to “kill” it “any which way.”

The next major Supreme Court case, King v. Burwell, was the direct result of

this strategy. The case turned on four words in the ACA that had ambiguous

meaning.

The case’s architects aimed, in their words, to “exploit[]” four isolated

words in the 2,000-page law—which they called a “monster” ﬁlled with “

contra-

dictions

and incongruities.”

The goal was to achieve a do-over of the failed con-

stitutional

challenge in NFIB by pulling at a small string in the ACA in the hopes

it would all come loose.

NFIB aimed at two of the three main strategies the ACA uses to expand

insur-

ance

access: the individual mandate and the Medicaid expansion.

King was

about the third: the ACA’s new insurance marketplaces.

These marketplaces—

called “exchanges”—were for the purchase of insurance by individuals and small

businesses and would serve as quality control clearinghouses, places where

con-

sumers

could compare health plans, plans could compete, and importantly, the

82. Verrilli, supra note 47, at 157 (“That these attacks came so swiftly after the NFIB decision was

not surprising, especially given the leak. Many on the right refused to accept NFIB as legitimate and

treated the opinion of the chief justice with scorn.”); cf. J

OAN BISKUPIC, THE CHIEF: THE LIFE AND

TURBULENT TIMES OF CHIEF JUSTICE JOHN ROBERTS 229–48 (2019) (reporting leaked information that

the Chief Justice had initially voted with the dissenters but later changed his vote to uphold the ACA).

83.

OUTUBE

84. Only a YouTube recording of the remarks is available. The main speaker exhorted:

This bastard has to be killed as a matter of political hygiene. I do not care how this is done,

whether it’s dismembered, whether we drive a stake through its heart, whether we tar and

feather it and drive it out of town, whether we strangle it. I don’t care who does it, whether

it’s some court, some place, or the United States Congress. Any which way. . . .

Am. Enter. Inst., supra note 83, at 1:30:55–1:31:15 (remarks of Michael Greve at a Dec. 7, 2010 panel).

85. 135 S. Ct. 2480, 2492 (2015) (“Petitioners and the dissent respond that the words ‘established by

the State’ would be unnecessary if Congress meant to extend tax credits to both State and Federal

Exchanges.”); see also Gluck, supra note 83, at 69–71 (explaining the genesis of the question in King v.

Burwell).

86. Am. Enter. Inst., supra note 84, at 1:32:50–1:33:16.

87. NFIB, 567 U.S. 519, 530–31 (2012).

88. King, 135 S. Ct. at 2485.

2020] THE AFFORDABLE CARE ACT’S LITIGATION DECADE 1485

access point for new subsidies for those under 400% FPL to make insurance more

affordable.

King targeted those subsidies.

The political context is an important part of the story. By 2012, ACA

opposi-

tion

had become a red-state “litmus test.”

It was viewed as a betrayal of the

Republican Party for state leadership to do anything to implement the ACA.

The problem for ACA implementation was that the ACA was drafted to rely

heavily on the states to run the new insurance exchanges—indeed the states’ right

of ﬁrst refusal to do so was negotiated by Republicans in the Senate to maintain

traditional state control over insurance.

Although the ACA does provide that

the federal government must operate an exchange for a state that declines to run

its own, the federal government did not anticipate operating most of the

exchanges in the nation.

And yet the political resistance that NFIB bred led to

the surprising result that, by the ACA’s 2014 launch deadline, more than half the

states had refused to implement their own exchanges.

Enter King. The challenged provision directs individuals to calculate their sub-

sidies for tax purposes based on a calculation involving “the monthly premiums

for such month . . . [the taxpayer was] enrolled in [a qualiﬁed health plan] through

an Exchange established by the State under [section] 1311 of the Patient

Protection and Affordable Care Act.”

Because section 1311 of the ACA estab-

lishes

the state-run exchanges, the challengers argued that, on a strictly literal

reading of the ACA, consumers on federally run exchanges could not beneﬁt

from the subsidies—an outcome that would have made insurance unaffordable in

the thirty-four states with federal exchanges at the time, most likely leading the

ACA markets to collapse in those states.

See, e.g., King, 135 S. Ct. at 2487, 2493; Brendan Mochoruk & Louise Sheiner, King v. Burwell

Explained, B

ROOKINGS (Mar. 3, 2015), https://www.brookings.edu/blog/usc-brookings-schaeffer-on-

health-policy/2015/03/03/king-v-burwell-explained/ [https://perma.cc/37CQ-GB93].

In 2015, the Supreme Court rejected the challenge—but this time more deci-

sively

with a uniﬁed opinion of six Justices (Justice Kennedy voted with the

ACA, unlike in NFIB).

The decision was based entirely on statutory interpreta-

tion

reasoning, because King was not a constitutional case. But the ruling was still

signiﬁcant.

King broke new statutory

interpretation ground because the Court departed

from its ordinary mode of interpretation to give the ACA a more forgiving read-

ing. The challengers had urged a hyper-literal reading of the ACA’s text. Strict

textualism was the dominant approach the Court took to statutes, including statu-

tory mistakes, at the time, and largely still is. The challengers took advantage of

89. See id. at 2487.

90. Gluck & Huberfeld, supra note 15, at 1759.

91. Id. at 1759–60.

92. Id. at 1727–30.

93. Id. at 1730–31.

94. See id.

95. 26 U.S.C. § 36B(b)(2)(A) (2012); King v. Burwell, 135 S. Ct. 2480, 2495 (2015).

96.

97. King, 135 S. Ct. at 2496.

1486 THE GEORGETOWN LAW JOURNAL [Vol. 108:1471

that approach and portrayed the ACA as a “law that no one understands,” arguing

that the Court could not possibly do more than give it the most literal

interpretation.

Instead, the Court read the words in the broader context of the ACA as a whole,

adopted a more forgiving view of Congress, and held that the Court “must do [its]

best” to construe the ACA in accordance with “the legislative plan.”

For the ﬁrst

time in a Supreme Court case in modern history, the Court also looked to a stat-

ute’s convoluted enactment process as part of its reasoning whether to cut the stat-

utory language some slack. It was a groundbreaking opinion for modern statutory

interpretation, harkening back to the “legal process” interpretive approach from

decades earlier that conceptualized courts as helpful partners to the legislature.

100

In King, the Court gave Congress—and the ACA— the beneﬁt of the doubt.

101

The majority’s refusal to apply its more literal mode of interpretation prompted

Justice Scalia to complain of ACA exceptionalism: “Under all the usual rules of

interpretation, in short, the Government should lose this case. But normal rules of

interpretation seem always to yield to the overriding principle of the present

Court: The Affordable Care Act must be saved.”

102

After King, Court watchers wondered if the Roberts Court would continue

down this new path of Congress-oriented, cooperative, statutory interpretation.

Thus far it has not, lending support to Justice Scalia’s view that the opinion was a

special opinion for a special statute. Lower state and federal courts, however, had

invoked King in more than 400 cases at the time of this Article.

C. USING THE MANDATE TO PULL THE WHOLE ACA DOWN: CALIFORNIA V. TEXAS

For the three years after King, ACA opponents focused on attacking parts of

the law rather than the entire law. We detail those challenges, including

chal-

lenges

to the ACA’s contraception-coverage requirements and its new civil rights

provisions, in the next Part.

ACA opponents looked

outside of courts, too, to Congress and the political

process. That in turn gave rise to new court cases. Many of those cases involved

the insurance industry, which we also discuss in the next Part. But one of those

cases gave rise to the third existential challenge to the law: California v. Texas, in

which the Supreme Court has granted certiorari and will hear oral argument in

the fall of 2020.

103

98. See Gluck, supra note 83, at 69–70 (internal quotation marks omitted).

99. King, 135 S. Ct. at 2492, 2496 (quoting Utility Air Regulatory Grp. v. EPA, 573 U.S. 302, 320

(2014)).

100. See H

ENRY M. HART, JR. & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE

MAKING AND APPLICATION OF LAW 1124–25 (William N. Eskridge, Jr. & Philip P. Frickey eds.,

Foundation Press 1994) (1958).

101. King, 135 S. Ct. at 2495.

102. Id. at 2497 (Scalia, J., dissenting).

103. 945 F.3d 355 (5th Cir. 2019), cert. granted sub nom. California v. Texas, 140 S. Ct. 1262 (2020)

(mem.).

2020] THE AFFORDABLE CARE ACT’S LITIGATION DECADE 1487

California v. Texas has its genesis in Congress. After King, ACA opponents’

focus turned to the presidential election of 2016. Candidate Trump, however,

surprised many by promising that he would replace the ACA with “something

better” rather than simply repeal it.

104

Sarah Kliff, Donald Trump Is Very Committed to Taking Away Your Health Insurance, VOX

(Mar. 27, 2019, 8:00 AM), https://www.vox.com/2019/3/27/18282509/trump-obamacare-lawsuit-

health-care [https://perma.cc/NH2N-DWGE]

He assured voters that his health plan

would offer universal coverage, too, saying: “I am going to take care of every-

body” and “[t]he government’s gonna pay for it.”

105

Linda Qiu, Ted Cruz’s False Claim that Trump, Clinton and Sanders ‘Have the Identical

Position on Health Care,’ P

OLITIFACT (Jan. 31, 2016), https://www.politifact.com/truth-o-meter/

statements/2016/jan/31/ted-cruz/ted-cruzs-false-claim-trump-clinton-and-sanders-ha/ [https://perma.cc/

3D2P-7GVE].

These promises put pres-

sure

on the now-Republican-controlled Congress not to repeal the ACA without

a replacement bill. After some seventy attempts—and some close calls in the

spring and summer of 2017—repeal efforts collapsed.

106

See Chris Riotta, GOP Aims to Kill Obamacare Yet Again After Failing 70

Times, N

EWSWEEK

(July 29, 2017, 6:53 PM), https://www.newsweek.com/gop-health-care-bill-repeal-and-replace-70-

failed-attempts-643832 [https://perma.cc/3VNH-GYM8].

Eager for even a symbolic “win,” at the end of 2017, Congress was able to

eliminate the tax penalty associated with the individual mandate as part of the

2017 Tax Cuts and Jobs Act.

107

The tax-reform package, which constituted the

Republican-controlled 115th Congress’s only signiﬁcant legislative accomplish-

ment after months of unsuccessful attempts to repeal the ACA, made it through

the gridlocked Congress via a special legislative procedure known as “reconcilia-

tion.”

108

See Tara Golshan, The Republican Tax Reform Bill Will Live and Die by

This Obscure Senate

Rule, V

OX (Nov. 14, 2018, 8:40 AM), https://www.vox.com/policy-and-politics/2017/11/14/16634200/

republican-tax-reform-byrd-rule [https://perma.cc/J8WH-ECPB].

This procedure bypasses the ﬁlibuster in the Senate. Reconciliation can

only be used for budget measures, however, and so Republicans were able to use

this fast-track procedure to repeal only the penalty; they could not use it to repeal

the rest of the ACA and they did not have the votes to otherwise repeal the ACA

in the Senate, where it takes sixty votes (which the Republicans did not have) to

end a ﬁlibuster.

109

Indeed, the Senate could not even muster ﬁfty votes to repeal

the ACA under the so-called

“skinny repeal” bill famously rejected with Senator John McCain’s thumbs down gesture in 2017. See

Carl Hulse, McCain Provides a Dramatic Finale on Health Care: Thumb Down, N.Y. T

IMES (July 28,

2017), https://www.nytimes.com/2017/07/28/us/john-mccains-real-return.html.

Because the mandate was the focal point of NFIB and the high-

est

proﬁle example of what critics said was the ACA’s overreach, repealing the

penalty was still a symbolic victory.

The Tax Cuts

and Jobs Act gave rise to the third existential challenge. Texas,

leading a group of twenty states,

110

Now eighteen states—Wisconsin and Maine withdrew from the lawsuit following the 2018

midterm elections. Katie Keith, Texas v. United States: Where We Are Now and What Could Happen

sued in 2018 on the ground that, without a tax

penalty, the mandate—which the Court had sustained as a tax in NFIB—lacks a

104.

105.

106.

107. See Tax

Cuts and Jobs Act, Pub. L. No. 115-97, § 11081, 131 Stat. 2054, 2092 (2017) (codiﬁed

as amended at 26 U.S.C. § 5000A(a)–(c) (2017)), invalidated by Texas v. United States, 945 F.3d 355

(5th Cir. 2019).

108.

109.

110.

1488 THE GEORGETOWN LAW JOURNAL [Vol. 108:1471

Next, HEALTH AFF. BLOG (July 9, 2019), https://www.healthaffairs.org/do/10.1377/hblog20190709.

772192/full/ [https://perma.cc/TNA7-9VCC].

constitutional basis in the taxing power and is therefore unconstitutional.

111

The

suit went further, however, and argued that without the mandate the entire ACA—

all 2,000 pages of it—cannot stand.

112

The argument is an extreme application of a

legal doctrine (that applies to all kinds of statutes, not just health laws) known as

“severability,” which asks courts to consider what to do with the rest of a statute if

one part is struck down. Applying the severability doctrine, the challengers argued

that all 2,000 pages of the ACA are inextricably intertwined with the mandate, and

so must fall with it.

113

Adding to the drama and raising the threat level, the Trump

Administration’s Department of Justice took the unusual position of refusing to

defend a federal law, and refused to defend the ACA.

114

Initially, the federal government only refused to defend guaranteed issue and the prohibition on

preexisting conditions exclusions, arguing that those provisions were not severable from the mandate.

Letter from Jefferson B. Sessions III, Att’y Gen., to Paul Ryan, Speaker, U.S. House of Representatives

(June 7, 2018), https://www.justice.gov/ﬁle/1069806/download [https://perma.cc/M73T-GSXP]. Now

on appeal, the federal government has refused to defend the ACA in its entirety. Letter from Joseph

Hunt, Assistant Att’y Gen. et. al, to Lyle W. Cayce, Clerk of the Court for the U.S. Court of Appeals for

the Fifth Cir., Texas v. United States, 945 F.3d 355 (5th Cir. 2019) (No. 00514887530), https://s3.

amazonaws.com/wvmetro-uploads-prod/2019/03/DOJ-Obamacare-letter.pdf [https://perma.cc/FVK5-

THEE].

California v. Texas has many of the same features of King, most saliently its

shared strategy of using a thin string to pull the entire statute loose.

115

See generally Jonathan H. Adler & Abbe R. Gluck, An

Obamacare Case So Wrong It Has

Provoked a Bipartisan Outcry, N.Y. T

IMES (June 19, 2018), https://www.nytimes.com/2018/06/19/

opinion/an-obamacare-case-so-wrong-it-has-provoked-a-bipartisan-outcry.html (describing the weakness

of the legal claims in California v. Texas).

It also

shares a feature with several of the cases we discuss in the next part: judge

shop-

ping.

ACA opponents ﬁled the case in the Fort Worth Division of the Northern

District of Texas which, at the time, had only one judge who was not semi-retired

and who had already issued several anti-ACA decisions.

116

111. Texas v. United States, 340 F. Supp. 3d 579, 619 (N.D. Tex. 2018), aff’d in part, vacated in part

by 945 F.3d 355 (5th Cir. 2019), cert. granted sub nom. California v. Texas, 140 S. Ct. 1262 (2020)

(mem.).

112. Id. at 373.

113. Texas v. United States, 945 F.3d at 373.

114.

115.

116.

2020] THE AFFORDABLE CARE ACT’S LITIGATION DECADE 1489

Manny Fernandez, In Weaponized Courts, Judge Who Halted Affordable

Care Act Is a

Conservative Favorite, N.Y. T

IMES (Dec. 15, 2018), https://www.nytimes.com/2018/12/15/us/judge-

obamacare-reed-oconnor.html (“[T]he Texas attorney general, Ken Paxton, ﬁled some of his major

cases challenging Obama Era policies in Wichita Falls, Tex., where [Judge Reed O’Connor] is the only

district judge who hears cases, and in Fort Worth, where he is the only district judge who is not

semiretired.”); see also Ashley Lopez, Judge Who Invalidated Obamacare Has Been A ‘Go-To Judge’

For Republicans, Critics Say, NPR (Dec. 19, 2018, 4:20 PM), https://www.npr.org/sections/health-

shots/2018/12/19/677965547/aca-judge [https://perma.cc/TAH3-9ZXC] (detailing Judge O’Connor’s

record of overturning Obama Era policies). Judge O’Connor has heard four cases concerning the ACA:

the Medicaid managed care fees case, Texas v. United States, 336 F. Supp. 3d 664 (N.D. Tex. 2018)

(ﬁled in October 2015); the Franciscan Alliance 1557 case, Franciscan Alliance, Inc. v. Burwell, 414 F.

Supp. 3d 928 (N.D. Tex. 2019) (ﬁled in August 2016); the Global Challenge, Texas v. United States, 945

F.3d 355 (N.D. Tex. 2018) (ﬁled in February 2018); and a contraceptive-mandate case, DeOtte v. Azar,

332 F.R.D. 173 (N.D. Tex. 2019) (ﬁled in October 2018).

In December 2018, the district court agreed with the challengers and struck

down the entire ACA, ruling the individual mandate without a penalty could not

be sustained as a tax and that nothing in the rest of the ACA could be severed

from the now-unconstitutional individual mandate.

117

The judgment was stayed

pending the decision on appeal from the Fifth Circuit Court of Appeals, which, in

December 2019 afﬁrmed the lower court in large part but remanded for more

detailed proceedings on the severability question.

118

In March 2020, the Supreme

Court granted certiorari and will hear the case close to the time of the presidential

election.

But one important difference in California v.

Texas is the political valence of

the case. The anti-severability legal arguments in the case are widely viewed as

weak—a fact that has produced another signiﬁcant ACA turning point:

unprece-

dented

opposition to an ACA lawsuit from many prominent conservative legal

experts, including heretofore ACA opponents.

The test for the legal doctrine at issue—severability—has long been settled.

The question is “legislative intent,” and usually the best the courts can do when

striking down part of a law is guess what Congress would have wanted to do

about the rest of the statute.

119

See Brief of Amici Curiae Jonathan H. Adler, Nicholas Bagley, Abbe R. Gluck, and Ilya Somin

in Support of Intervenors-Defendants-Appellants at 6, Texas v. United States, 945 F3d 355 (5th Cir.

2019) (No. 19-10011), https://affordablecareactlitigation.ﬁles.wordpress.com/2019/04/5c-adler-bagley-

gluck-somin-amicus.pdf [https://perma.cc/7SCP-SLTN].

As the Court has explained, it “must next ask:

Would the legislature have preferred what is left of its statute to no statute at

all?”

120

and “[u]nless it is ‘evident’ that the answer is no, [a court] must leave the

rest of the Act intact.”

121

In California v. Texas, and the reason the challengers’

claims appear specious to legal experts of all political stripes, it was a

Republican-controlled Congress that passed the Tax Cuts and Jobs Act. The

elim-

ination

of the mandate penalty was the only aspect of the ACA that Congress

repealed, and it followed the GOP’s repeated and failed attempts to repeal and

replace the law during the ﬁrst year of the Trump Administration and before.

Even legal experts associated with ACA opposition have argued that it blinks

reality to argue that Congress intended to repeal the entire ACA with the mandate

penalty when in fact, Congress is the one that left the rest of the ACA in place.

Congress did not repeal the ACA and Congress did not have the votes to do so.

122

117. See Texas v. United States, 340 F. Supp. 3d 579, 619 (N.D. Tex. 2018); see also Texas v. United

States, 352 F. Supp. 3d 665, 669 (N.D. Tex. 2018) (staying judgment pending appeal).

118. See Texas v. United States, 945 F.3d at 403.

119.

120. Ayotte v. Planned Parenthood of N. New Eng., 546 U.S. 320, 330 (2006).

121. NFIB, 567 U.S. 519, 587 (2012) (plurality opinion) (quoting Champlin Ref. Co. v. Corp.

Comm’n of Okla., 286 U.S. 210, 234 (1932)).

122. Nor did the functional disappearance of the tax penalty convert the remainder of the mandate

statute into a command to purchase insurance; the government cannot compel people to purchase

insurance now, and any argument that Congress intended to turn the mandate into an even stronger

command when it repealed the penalty—at the same moment it was trying to defang the ACA—makes

no sense.

1490 THE GEORGETOWN LAW JOURNAL [Vol. 108:1471

This new alignment of legal scholars is signiﬁcant because it indicates that

unqualiﬁed ACA opposition may no longer be a GOP litmus test.

123

Prominent Republican legal experts, including several who were architects of the earlier

major ACA challenges, have argued the lawsuit is meritless; some have ﬁled bipartisan amicus briefs.

See Brief of Amici Curiae Jonathan H. Adler, Nicholas Bagley, Abbe R. Gluck, and Ilya Somin in

Support of Intervenors-Defendants-Appellants, supra note 119; Brief of Amici Curiae Samuel L.

Bray, Michael W. McConnell, and Kevin C. Walsh in Support of Intervenors-Defendants-Appellants,

Texas v. United States, 945 F.3d 355 (5th Cir. 2019), https://affordablecareactlitigation.ﬁles.

wordpress.com/2019/04/5c-bray-mcconnell-walsh-amicus.pdf [https://perma.cc/Q36R-9S93]; Brief

for Amici Curiae Walter Dellinger and Douglas Laycock in Support of Intervenors-Defendants-

Appellants Supporting Remand and Dismissal, Texas v. United States, 945 F.3d 355 (5th Cir. 2019),

https://perma.cc/9SB7-9VME.

Some Republican elected ofﬁcials have spoken out against the suit. Two Republican attorneys

general even ﬁled an amicus brief opposing the district court’s severability ruling, while more still have

distanced themselves from it. See Brief of Amicus Curiae States of Ohio and Montana in Support of

Neither Party, Texas v. United States, 945 F.3d 355 (5th Cir. 2019), https://www.ohioattorneygeneral.

gov/Files/Brieﬁng-Room/News-Releases/Appeals/Tex-v-US-Amicus-Brief-FOR-FILING-4-1.aspx

[https://perma.cc/2AFL-PX8Z]. Michael Cannon of the Cato Institute, self-declared “Obamacare’s

Enemy No. 1,” accused the district court of “jettison[ing] the rule of law to achieve a politically

desired outcome.” Michael F. Cannon, Obamacare’s Enemy No. 1 Says This Is the Wrong Way to

Kill It, C

ATO INST. (Mar. 28, 2019), https://www.cato.org/publications/commentary/obamacares-

enemy-no-1-says-wrong-way-kill-it [https://perma.cc/5YXN-CDGG].

The conservative Wall Street Journal editorial board, in an op-ed that began “[n]o one opposes

ObamaCare more than we do,” argued the judge had misapplied the law and that “even the right-leaning

Fifth Circuit Court of Appeals judges will overturn” the decision. Editorial, Texas ObamaCare Blunder,

ALL ST. J. (Dec. 16, 2018, 4:40 PM), https://www.wsj.com/articles/texas-obamacare-blunder-

11544996418.

It remains to be seen whether the challenge will gain more prominent

supporters, like the other existential attacks on the ACA. Now that the

Supreme Court has granted certiorari, it may also be an opportunity for the

Court to speak more broadly on the doctrine of severability, which could

have an impact on areas of the legal landscape far beyond healthcare.

124

And if the ACA is ultimately invalidated in whole or in large part, there is

an entirely different set of legal questions concerning how a statute of this

complexity, which has transformed the system so much, could even be

unwound.

III. H

UNDREDS OF OTHER CHALLENGES IN FEDERAL COURT: INSURANCE, CIVIL

RIGHTS, AND ACA DEFENSE

NFIB, King, and Texas are just the tip of the iceberg. More than 100 cases have

been ﬁled challenging aspects of the ACA since it was enacted. Space does not

permit as complete an exegesis of these cases as we have offered for the

existen-

tial

challenges, but we think capturing the landscape is important not only to

document the history but also to convey how many areas of law the ACA touches

and the range of challenges to it.

123.

124. See Brief for Jonathan H. Adler, Nicholas Bagley, Abbe R. Gluck, and Ilya Somin as Amici

Curiae Supporting Petitioners, California v. Texas, 140 S. Ct. 1262 (2020) (mem.).

2020] THE AFFORDABLE CARE ACT’S LITIGATION DECADE 1491

The main groups of cases can be roughly divided into three categories:

cases involving the insurers the ACA relies on, cases about the ACA’s new

civil rights protections (including its contraception protections), and cases

challenging the Trump Administration’s efforts to weaken the law. There are

also hundreds of other cases on a wide range of topics, from standing, to

ERISA,

125

to intergovernmental disputes, which we brieﬂy summarize at the

end of this Part.

The insurer cases raise important questions about Congress’s relationships

with private statutory implementers and the intersection of appropriations law

with statutory commands. The civil rights cases, and the cases challenging the

Trump Administration’s efforts to weaken the law, all address how far the ACA

reaches to require or induce or encourage individuals, employers, and insurers to

participate in the new system. The NFIB struggle over the Commerce Clause

was, at bottom, about the same point.

All of these cases might have an impact on how government programs are

structured in the future—in particular, the extent to which the the ACA chal-

lenges might chill future efforts to embed reforms in private implementers (like

insurers and employers) and favor instead more direct national regulation, which

would be harder to challenge. It would be an ironic legacy for a law that began as

a market-oriented compromise, and then was challenged as government over-

reach, to pave the way toward nationalization.

A. INSURERS

After the ACA opponents lost in the Supreme Court in NFIB, they looked

for other ways to weaken the law, and they looked outside the courts as well

as within them. One venue was Congress, which has been under at least par-

tial Republican control since 2010. Congressional Republicans, later aided

by President Trump, not only tried to repeal the law but alternatively tried to

weaken the ACA by ﬁnancially starving it. Some of these efforts, for exam-

ple, when President Trump cut funds for insurance “navigators”—critical

outreach personnel for exchange enrollment—harmed insurers indirectly

(through depressed enrollment).

126

See, e.g., K

AREN POLLITZ ET AL., KAISER FAMILY FOUND., DATA NOTE: CHANGES IN 2017

EDERAL NAVIGATOR FUNDING (2017), http://ﬁles.kff.org/attachment/Data-Note-Changes-in-2017-

Federal-Navigator-Funding [https://perma.cc/JGT9-DWE7]; Karen Pollitz et al., Data Note: Limited

Navigator Funding for Federal Marketplace States, K

AISER FAMILY FOUND. (Nov. 13, 2019), https://

www.kff.org/health-reform/issue-brief/data-note-further-reductions-in-navigator-funding-for-federal-

marketplace-states/ [https://perma.cc/C2NA-GFKN]; Shanoor Seervai, Cuts to the ACA’s Outreach

Fund Will Make It Harder for People to Enroll, C

OMMONWEALTH FUND (Oct. 11, 2017), https://www.

commonwealthfund.org/publications/other-publication/2017/oct/cuts-acas-outreach-budget-will-make-

it-harder-people-enroll.

But in other instances, Congress’s actions

were targeted directly at funding streams that the ACA promised insurers.

127

125. ERISA stands for Employee Retirement Income Security Act of 1974.

126.

127. See infra pp. 1494–1500.

1492 THE GEORGETOWN LAW JOURNAL [Vol. 108:1471

Insurers have ﬁled approximately 50 to 100 cases concerning the ways in

which the ACA relies on them and what the ACA promises them. Here, it is

criti-

cal

to remember how much the ACA built on what came before. The ACA retains

the preexisting private insurance system, employer-based and individual, which

accounted for more than 50% of Americans’ insurance at the time the ACA was

drafted and continued to do so ten years later.

As such, the

ACA relies heavily on the private insurance system to help imple-

ment its reforms. But the ACA also fundamentally changes that system by imposing

new national restrictions on how insurers do business. Insurers can no longer “medi-

cally underwrite”—reject

128

or rescind

129

coverage due to preexisting conditions or

health status. The ACA also makes insurance more affordable and transparent by

eliminating lifetime and annual caps

130

and co-pays for certain preventive serv-

ices.

131

The ACA further requires all plans on the new insurance exchanges to meet

minimum quality standards and cover ten essential health beneﬁts.

132

To make these changes affordable for insurers, the ACA both increased the

customer pool (with the insurance purchase mandate) and provided three

criti-

cal

funding streams, known as the “three Rs”: risk corridors,

133

risk adjust-

ment,

134

and reinsurance.

135

These are ﬁnancial mechanisms designed to

stabilize the insurance markets during the transition to the new regime and

en-

courage

plans to serve high-cost patients. Each of these programs involves

some type of redistribution from plans that on average have fewer high-cost

patients to plans that cover more people with chronic conditions and other

higher cost medical needs. The philosophy underlying them is that plans that

serve higher cost patients should be rewarded for doing so while plans that

serve lower-cost patients should give up a portion of the money they are saving

by paying less expensive claims.

The ACA also

attempts to make coverage affordable for relatively low-income

people by requiring insurers to reduce “cost sharing” (for example, deductibles

and copays) charged to individuals, and the law attempts to encourage insurers to

enroll those low-income patients by reimbursing plans for the money they lose by

reducing cost-sharing for those patients.

136

These “cost-sharing reduction” pay-

ments

(CSRs) are another funding stream in addition to the three Rs.

Recognizing the importance of all these payments to the ACA, opponents

tar-

geted

them for attack. The result was more litigation. These cases have a different

feel from NFIB, King, and California v. Texas. They are less directly about

128. Patient Protection and Affordable Care Act, Pub. L. No. 111-148, § 1001(5), 124 Stat. 119, 130

(2010) (codiﬁed at 42 U.S.C. § 300gg-1 (2012)).

129. Id. (codiﬁed at 42 U.S.C. § 300gg-12).

130. Id. (codiﬁed at 42 U.S.C. § 300gg-11).

131. Id. (codiﬁed at 42 U.S.C. § 300gg-13).

132. Id. § 1302 (codiﬁed at 42 U.S.C. § 18022).

133. Id. § 1342 (codiﬁed at 42 U.S.C. § 18062) (in effect for plan years 2014, 2015, and 2016).

134. 42 U.S.C. § 18063.

135. Id. § 18061.

136. Id. § 18071.

2020] THE AFFORDABLE CARE ACT’S LITIGATION DECADE 1493

concerns about government overreach, and more about government promises not

kept. The cases tee up important questions that extend beyond the ACA itself,

namely, about Congress’s obligations to private implementers who are made inte-

gral parts of statutory schemes. Here, Congress and the Executive took political

action to disrupt payments that the private sector had been counting on based on

the text of the ACA. How strictly Congress is required to adhere to those prom-

ises, and what exactly is the nature of the relationship between Congress and its

private sector partners are key questions—some of which the Supreme Court

answered just as this Article went to print.

1. The “Three Rs”

a. Risk Corridors.

By statute, the risk corridors program was a three-year program, covering plan

years 2014 through 2016.

137

The statutory formula called for HHS to make risk

corridor payments to plans whose costs were more than 103% of a target amount,

and for HHS to collect from plans whose costs were less than 97% of the target

amount.

138

In 2013, HHS suggested that this formula called for the agency to

make payments to higher-cost plans that exceeded the amounts it would be

col-

lecting

from lower-cost plans. In other words, the program would not be budget

neutral. The federal government would have to put additional money in to make

up for higher costs experienced by the plans that served higher-cost patients.

139

ACA opponents seized on the announcement, and labeled the proposed for-

mula

a “taxpayer-funded bailout for insurance companies.”

140

See, e.g., Robert Pear, Marco Rubio Quietly Undermines Affordable Care Act, N.Y. T

IMES

(Dec. 9, 2015), https://www.nytimes.com/2015/12/10/us/politics/marco-rubio-obamacare-affordable-

care-act.html.

Senator Marco

Rubio proposed an appropriations rider to block the transfer of such payments,

which—after two years of trying to get it through Congress—was enacted at the

end of 2014 as part of the 2015 appropriations bill.

141

Insurers had already set

their premiums for 2014 and 2015 relying on the risk corridor formula.

Insurers ﬁled more than ﬁfty cases to challenge the rider.

142

This started with the class action of Health Republic Ins. Co. v. United States, No. 1:16-cv-259

(Fed. Cl. Filed Feb. 24, 2016). See Risk Corridors and Risk Adjustment, A

FFORDABLE CARE ACT LITIG.,

https://affordablecareactlitigation.com/risk-corridors-and-risk-adjustment/ [https://perma.cc/XWF4-

EA4L] (last visited Mar. 25, 2020). The cases are in the Court of Federal Claims because under the

Tucker Act, that is where cases claiming money from the Federal Government are supposed to be ﬁled.

They argued that

they had an entitlement under the statutory formula to get the payments the

137. Patient Protection and Affordable Care Act § 1342(a).

138. Id. § 1342(b)(1)(A), (b)(2)(A).

139. Patient Protection and Affordable Care Act; HHS Notice of Beneﬁt and Payment Parameters for

2014, 70 Fed. Reg. 15,410, 15,411 (Mar. 11, 2013) (codiﬁed at 45 C.F.R. pts. 153, 155, 156–58).

140.

141. See Consolidated and Furthering Continuing Appropriations Act, 2015, Pub. L. No. 113-235,

§ 227, 128 Stat. 2130, 2491 (“None of the funds made available by this Act from [CMS trust funds], or

transferred from other accounts funded by this Act to the ‘Centers for Medicare and Medicaid

Services—Program Management’ account, may be used for payments under section 1342(b)(1) of

Public Law 111-148 [i.e., 42 U.S.C. 18062(b)(1)] (relating to risk corridors).”).

142.

1494 THE GEORGETOWN LAW JOURNAL [Vol. 108:1471

formula promised, and that the rider could not effectively repeal that promise in

the ACA.

143

The Government responded that “[t]he ACA did not impose an obli-

gation, enforceable through private actions for damages, to make risk-corridors

payments in excess of appropriations.”

144

In 2018, after mixed results in the

Court of Federal Claims, the Federal Circuit Court of Appeals held that the ACA

gave insurers the right to the risk corridor payments, but that this right was

revoked by the appropriations rider.

145

In June of 2019, however, the Supreme Court surprised some onlookers when

it granted review of the Federal Circuit’s decisions in several of these cases,

con-

solidated

as Maine Community Health Options v. United States.

146

The question

on which the Court granted cert implicates much more than the ACA: “Whether

Congress can evade its unambiguous statutory promise to pay health insurers for

losses already incurred simply by enacting appropriations riders restricting the

sources of funds available to satisfy the government’s obligation.”

147

Another

interesting shift: Former Solicitor General Paul Clement, who argued against the

ACA in NFIB, argued to enforce the ACA in Maine Community Health Options.

Before the argument, Clement had observed: “The stakes of the risk corridor

cases underscore the ACA’s outsized impact. . . . [E]ven the Supreme Court does

not get many $12 billion cases. Similarly, it is the rare statute that occupies as

much of the Supreme Court’s time and attention as the ACA.”

148

The Court decided the case on April 27, 2020, in an 8–1 opinion for the insurers,

requiring Congress to stand by the obligations it created for itself in the text of the

ACA and not permitting an implied repeal of those obligations through an

appropri-

ations

rider.

149

At oral argument, the Justices evinced their understanding of the im-

portant

role of the risk corridor program within the ACA’s statutory scheme.

150

Transcript of Oral Argument at 37–41, Moda Health Plan, Inc. v. United States (Moda), No. 18-

1028 (Dec. 10, 2019), https://www.supremecourt.gov/oral_arguments/argument_transcripts/2019/18-

1023_m648.pdf [https://perma.cc/9JVX-XFZY].

series of questions also centered on whether the insurers would have participated in

the markets or made different pricing decisions but for the government’s promise to

143. Brief for Petitioners at 27–30, Me. Cmty. Health Options v. United States, No. 18-1023, 18-

1028, and 18-1038 (Aug. 30, 2019).

144. Brief for the Respondent at 19–43, Me. Cmty. Health Options, No. 18-1023, 18-1028, and 18-

1038 (Oct. 21, 2019); see also id. at 51 n.10 (elaborating on the argument and responding to petitioners’

contentions).

145. Moda Health Plan, Inc. v. United States, 892 F.3d 1311, 1320, 1324 (Fed. Cir. 2018), cert.

granted, 139 S. Ct. 2743 (2019) (mem.), and argued, No. 18-1028 (Dec. 10, 2019); see also Land of

Lincoln Mut. Health Ins. Co. v. United States, 892 F.3d 1184 (Fed. Cir. 2018), cert. granted, 139 S. Ct.

2744 (2019) (mem.), and argued, No. 18-1038 (Dec. 10, 2019).

146. 892 F.3d at 1320, 1324. In granting certiorari, the Supreme Court consolidated Moda, id., and

Blue Cross and Blue Shield of North Carolina v. United States, 729 F. App’x 939 (Fed. Cir. 2018)

(mem.).

147. Brief for Petitioners at i, Me. Cmty. Health Options, No. 18-1023, 18-1028, and 18-1038 (Aug.

30, 2019); see also Petition for Writ of Certiorari at i, Me. Cmty. Health Options, No. 18-1023, 18-1028,

and 18-1038 (Feb. 4, 2019).

148. Clement, supra note 8, at 174.

149. Me. Cmty. Health Options, No. 18-1023, 2020 WL 1978706 (U.S. Apr. 27, 2020).

150.

2020] THE AFFORDABLE CARE ACT’S LITIGATION DECADE 1495

pay—further demonstrating the importance of the case for the growing number of

statutes that involve private implementers.

151

b. Risk Adjustment.

The risk adjustment program also spreads costs among insurers participating in

the exchanges. Speciﬁcally, it prompts states to assess charges on health plans

whose patients have below-average actuarial risks and provide payments to

health plans whose patients have above-average actuarial risks.

152

Contrary to

its risk corridor policy at the outset, the Obama Administration promulgated

revenue-neutral risk adjustment regulations, where money was redistributed

among insurers and no new money came from the federal government. Lawsuits

were ﬁled and lower courts split over whether the Obama Administration’s

posi-

tion

was permissible.

153

In December 2019, the Court of Appeals for the Tenth

Circuit upheld the federal government’s methodology.

154

Another risk adjustment

case pending appeal concerns whether the ACA’s risk adjustment provisions

pre-

empt

formulas that a state—in this case, New York—might prefer to employ.

155

c. Reinsurance.

Reinsurance occurs when one insurer takes on part of the responsibility for

risks originally handled by another insurer, thereby enabling the original insurer’s

rates to remain lower. The ACA’s transitional reinsurance program has been

phased out over time, and did not lead to major litigation. However, the program

did prompt states to establish ways to continuously reinsure the risks associated

with insurance plans that serve particularly high-cost patients. Many states—red

and blue alike—have obtained “state innovation waivers” under section 1332

of the ACA.

156

151. Id. at 58–59.

152. The ACA expected the system to be modeled on the Medicare Part D risk adjustment system for

charging prescription drug plans whose patients have less-than-average actuarial risks and paying

prescription drug plans whose patients have greater-than-average actuarial risks.

153. Compare N.M. Health Connections v. U.S. Dep’t of Health & Human Servs., 312 F. Supp. 3d

1164, 1170 (D.N.M. 2018) (“The [c]ourt concludes that: . . . HHS’ use of statewide average premiums in

its risk adjustment methodology . . . is arbitrary and capricious . . . .”), rev’d, 946 F.3d 1138 (10th Cir.

2019), with Minuteman Health v. U.S. Dep’t of Health & Human Servs., 291 F. Supp. 3d 174, 201 (D.

Mass. 2018) (“The question then becomes whether HHS’s decision to attempt to operate the risk-

adjustment program in a budget-neutral way was unreasonable or arbitrary. It was not.”).

154. N.M. Health Connections v. U.S. Dep’t of Health & Human Servs., 946 F.3d 1138, 1167 (10th

Cir. 2019) (“HHS did not violate the APA when it designed the risk adjustment program as budget

neutral”).

155. Unitedhealthcare of N.Y. v. Vullo, 323 F. Supp. 3d 470 (S.D.N.Y. 2018), appeal ﬁled sub nom.

Unitedhealthcare of N.Y. v. Lacewell, No. 18-2583 (2d Cir. Aug. 28, 2018).

156.

See Tracking Section 1332 State Innovation Waivers, K

AISER FAMILY FOUND. (Jan. 7, 2020),

https://www.kff.org/health-reform/fact-sheet/tracking-section-1332-state-innovation-waivers/ [https://

perma.cc/B6LL-UBUF]. As of January 2020, the federal government had approved section 1332

reinsurance waivers in thirteen states. Id.

1496 THE GEORGETOWN LAW JOURNAL [Vol. 108:1471

For instance, Alaska has implemented its own version of a

reinsurance program, which has already helped reduce premiums.

157

Alaska has a section 1332 waiver allowing a state agency to cover claims for individual market

users who have one or more of thirty-three high-cost conditions, including HIV/AIDS, chronic hepatitis,

hemophilia, cerebral palsy, and end-stage renal disease. See 3 A

LASKA ADMIN. CODE tit. 3, § 31.540

(2019). Alaska has projected that the reinsurance will reduce premiums by 20% of what they would have

been without the reinsurance. A

FFORDABLE CARE ACT LITIG., ALASKA: STATE INNOVATION WAIVER

UNDER SECTION 1332 OF THE PPACA ( 2017), https://affordablecareactlitigation.ﬁles.wordpress.com/

2018/09/alaska-1332-waiver-fact-sheet-ﬁnal-7-11-17.pdf [https://perma.cc/4U8Q-VMEG].

B. COST SHARING REDUCTION PAYMENTS

Another set of cases focuses on the cost-sharing reduction payments (CSRs).

Those cases, combined with the 2020 risk corridors case decided by the Supreme

Court in Maine Community Health Options, reveal the ACA—and its litigation—

to have become an important part of the development of modern appropriations

law. As noted, the ACA also attempts to make marketplace coverage more

affordable for low-income individuals by reimbursing insurers for money they

spend on reducing how much consumers pay out-of-pocket (“cost-sharing”).

158

Litigation about these CSR payments has taken unexpected turns.

Before the ACA, there were no reported cases in which a litigant had challenged

the federal government’s expenditure of funds as a violation of the Constitution’s

Appropriations Clause.

159

Nor were there any reported cases holding that an

express congressional failure to appropriate money could give rise to a cause of

action under the Appropriations Clause. Furthermore, neither Congress—nor the

House or Senate individually—had ever sued the Executive Branch for an alleged

violation of the Appropriations Clause.

United States House of Representatives v. Burwell is the ACA case that changed

this history.

160

At issue were the CSR payments to insurers, which reduce how much

money low-income patients pay out of pocket.

161

The CSRs can be found in section

1402 of the Act.

162

The CSRs are programmatically linked to the premium tax cred-

its

(the subsidies that lower premiums for marketplace coverage), which are found

in section 1401.

163

Premium tax credits, however, are paid from a Treasury fund

whose governing statute expressly mentions them, but does not mention CSRs.

164

2014, the Obama Administration made a request for a speciﬁc appropriation for

CSR payments, but Congress refused to appropriate the funding.

165

157.

158. Patient Protection and Affordable Care Act, Pub. L. No. 111-148, § 1402, 124 Stat. 119, 220

(2010) (codiﬁed at 42 U.S.C. § 18071 (2012)).

159. U.S. C

ONST. art. I, § 9, cl. 7 (“No Money shall be drawn from the Treasury, but in Consequence

of Appropriations made by Law . . .”).

160. 185 F. Supp. 3d 165 (D.D.C. 2016), appeal held in abeyance, 676 F. App’x 1 (D.C. Cir. 2016)

(per curiam).

161. Id. at 165.

162. Patient Protection and Affordable Care Act § 1402.

163. “Premium tax credits” are government subsidies that lower premiums for marketplace coverage

for those with incomes under 400% FPL. Id. at § 1401.

164. 31 U.S.C. § 1324(b)(2) (2012).

165.

2020] THE AFFORDABLE CARE ACT’S LITIGATION DECADE 1497

Doug Badger, Panic Prompted ObamaCare Lawlessness, H

ILL (July 15, 2016 11:47 AM),

https://thehill.com/blogs/pundits-blog/healthcare/287906-panic-prompted-obamacare-lawlessness [https://

perma.cc/H7XC-FYWF].

The Administration decided to make the payments out of the Treasury fund.

166

One House staff report suggests the Obama Administration did not want CSR payments to go

through appropriations because it did not want them to be subject to the budget sequester. A

FFORDABLE

CARE ACT LITIG., JOINT CONGRESSIONAL INVESTIGATIVE REPORT INTO THE SOURCE OF FUNDING FOR

THE

ACA’S COST SHARING REDUCTION PROGRAM 63 (2016), https://affordablecareactlitigation.ﬁles.

wordpress.com/2018/09/20160707joint_congressional_investigative_report-2-1.pdf [https://perma.cc/

54CQ-DTV3].

The House of Representatives sued, claiming that disbursing CSRs absent a spe-

ciﬁc

appropriation violated the Appropriations Clause of the Constitution.

167

Once ﬁled, the litigation proved surprisingly successful on several fronts. First,

the federal district court in Washington, D.C. ruled that the House had standing to

pursue an Appropriations Clause claim—a ruling that broke new ground given

the Supreme Court’s historically narrow approach to the question of when

legisla-

tures

or legislators can sue to enforce laws they pass.

168

The theory in United

States House of Representatives v. Burwell was in part based on the argument

that because the Constitution requires all appropriations legislation to originate in

the House, the House had a special legal interest in enforcing that aspect of its

authority.

169

In a subsequent order, the district court found that there was no

express appropriation supporting the CSR payments and enjoined further

pay-

ments

from being made, but stayed the order pending appeal.

170

Then, the Trump Administration took ofﬁce. The Administration reversed

course, disputing the Obama Administration’s position on the legality of the CSR

payments.

171

See Letter from Jeff Sessions, Att’y Gen., to Steven Mnuchin, Sec’y of the Treasury, and Don

Wright, Acting Sec’y of Health & Human Servs. (Oct. 11, 2017), https://www.hhs.gov/sites/default/

ﬁles/csr-payment-memo.pdf [https://perma.cc/7BZE-N5TV].

Democrat-led states intervened on appeal to defend the law.

172

Simultaneously, President Trump made public statements threatening to halt

the payments himself nearly every week, throwing insurance markets into a state

of uncertainty.

173

See, e.g., Lydia Ramsey & Bob

Bryan, Trump Is Threatening a Move That Could Make

Obamacare Implode and Hurt Lawmakers’ Coverage, B

US. INSIDER (July 31, 2017), https://www.

businessinsider.my/trump-obamacare-cost-sharing-payments-2017-7/ (citing tweets by President Trump

threatening to cut off the payments); Dylan Scott, Trump Will Pull Obamacare Subsidies in Another

Attack on Health Law, V

OX (Oct. 12, 2017, 10:52 PM), https://www.vox.com/policy-and-politics/2017/

10/12/16070724/trump-cost-sharing-reductions-pulled [https://perma.cc/8LFG-UZC9] (describing how

“President Donald Trump has been threatening to end the payments . . . for months”).

Insurers and states had to make decisions about rates for the

2018 year without knowing if the payments would continue. Some insurers even

supplied regulators with two different rate schedules, one to apply if CSR

166.

167. Complaint, U.S. House of Representatives v. Burwell, 185 F. Supp. 3d 165 (D.D.C. 2016)

(“Defendants . . . have violated, and are continuing to violate, the Constitution by directing, paying, and

continuing to pay, public funds to certain insurance companies to implement a program authorized by

the ACA, but for which no funds have been appropriated.”).

168. House v. Burwell, 130 F. Supp. 3d at 58 (Collyer, J.). Judge McFadden took a contrary view

and, in United States House of Representatives v. Mnuchin, 379 F. Supp. 3d 8, 11 (D.D.C. 2019), ruled

that the House did not have standing to enforce the Appropriations Clause.

169. House v. Burwell, 130 F. Supp. 3d at 74.

170. House v. Burwell, 185 F. Supp. 3d at 168.

171.

172. House v. Price, No. 16-5202 (D.D.C. Aug. 1, 2017).

173.

1498 THE GEORGETOWN LAW JOURNAL [Vol. 108:1471

payments were made, the other to apply if they were not.

174

See, e.g., RABAH KAMAL ET AL., KAISER FAMILY FOUND., HOW THE LOSS OF COST-SHARING

SUBSIDY PAYMENTS IS AFFECTING 2018 PREMIUMS (2017), https://www.kff.org/health-reform/issue-

brief/how-the-loss-of-cost-sharing-subsidy-payments-is-affecting-2018-premiums/ [https://perma.cc/

5N8A-36WD].

In October 2017, the Administration halted the payments entirely.

175

See Notice at 1, United States House of Representatives v. Hargan, No. 16-5202 (D.C. Cir. Oct.

13, 2017), https://separationofpowerslaw.ﬁles.wordpress.com/2017/12/us-house-v-hargan-sessions-

opinion-letter.pdf [https://perma.cc/N524-TAUP].

Seventeen states sued in the Northern District of California to get a preliminary

injunction to reverse the decision.

176

They were unsuccessful, partly because

most states, including California, had already raised insurers’ overall rates in

order to compensate for the loss of CSR payments.

177

The court held that, without

irreparable harm to the insurers, a preliminary injunction was inappropriate.

178

A number of insurers then ﬁled cases in the Court of Federal Claims seeking

reimbursement for CSR payments that the federal government had not made.

179

So far, the Court of Federal Claims has ruled in favor of the insurers in six cases.

The most signiﬁcant ruling came in Common Ground, an opt-in class action,

where on October 22, 2019, the court entered a $1,587,108,397.81 judgment for

the 2017 and 2018 plan years.

180

Several CSR cases were appealed to the Federal

Circuit, which held oral argument on January 9, 2020.

181

Other CSR cases are

174.

175.

176. California v. Trump, 267 F. Supp. 3d 1119 (N.D. Cal. 2017). The states seeking preliminary

included California, Connecticut, Delaware, Illinois, Maryland, Massachusetts, Minnesota, Vermont,

Oregon, Pennsylvania, New York, Washington, Virginia. Id. at 1121. The District of Columbia, Iowa,

Kentucky, and New Mexico joined pro se. Id.

177. Id. at 1134–38. The states generally used a practice known as “silver loading”—shifting the

weight of the rate increases into the ACA’s middle level, silver plans, which are subsidized. The effect is

that the individual subsidized purchaser does not feel the effect of the rate increase, because the federal

subsidy increases as the silver rate does (meaning, ironically, that the federal government winds up

paying at least as much to the plans as it would have done if it had made the CSR payments in the ﬁrst

place).

178. Id. at 1134–39.

179. See, e.g., Complaint, Emblemhealth, Inc., v. United States, No. 19-1164-C (Fed. Cl. Aug. 12,

2019); Complaint, Common Ground Healthcare Coop. v. United States, 142 Fed. Cl. 38 (2019), appeal

ﬁled, No. 20-1286 (Fed Cir. Dec. 23, 2019); Complaint, Noridian Mutual Ins. Co. v. United States, No.

18-1983-C (Fed. Cl. Dec. 27, 2018); Complaint, Local Initiative Health Authority for Los Angeles Cty.

v. United States, 145 Fed. Cl. 746 (2018); Complaint, Sanford Health Plan v. United States, 139 Fed. Cl.

701 (2018), appeal ﬁled, No. 19-1290 (Fed Cir. Dec. 11, 2018); Complaint, Blue Cross & Blue Shield of

Vt. v. United States, No. 18-373-C (Fed. Cl. Mar. 9, 2018); Complaint, Health All. Med. Plans, Inc. v.

United States, No. 18-334-C (Fed. Cl. Mar 5, 2018); Complaint, Mont. Health Co-Op v. United States,

139 Fed. Cl. 213, appeal ﬁled, No. 19-1302 (Fed. Cir. Dec. 12, 2018); Complaint, Molina Healthcare of

Ca., Inc., v. United States, 133 Fed. Cl. 14 (2017).

180. Common Ground Healthcare Coop. v. United States, No. 1:17-cv-877-MMS, slip op. at 1 (Fed.

Cl. Oct. 22, 2019).

181. In ascending order of Federal Circuit docket number, they are Sanford Health Plan, 139 Fed. Cl.

70 (2018), appeal docketed, No. 19-1290 (Fed Cir. Dec. 11, 2018); Montana Health Co-Op, 139 Fed. Cl.

213, appeal docketed, No. 19-1302 (Fed. Cir. Dec. 12, 2018); Community Health Choice, 141 Fed.

Cl. 744 (2019), appeal docketed, No. 19-1633 (Fed. Cir. March 8, 2019); Common Ground Healthcare

Cooperative, 142 Fed. Cl. 38 (2019), appeal docketed, No. 20-1286 (Fed Cir. Dec. 23, 2019); and Local

Initiative Health Authority for Los Angeles County, 145 Fed. Cl. 746 (2019), appeal docketed, No. 20-1393

(Fed. Cir. Jan. 27, 2020). The United States raised complex damages-computation issues, and asks whether

2020] THE AFFORDABLE CARE ACT’S LITIGATION DECADE 1499

stayed at the Court of Federal Claims, pending a decision by the Federal Circuit

regarding whether or not there is a right to recovery, and if so whether there must

be limits on how much insurers may recover.

182

For its part, the House v. Burwell litigation itself was dismissed via settlement,

183

and Congress has not reinstated CSR payments through a separate appropriation.

C. CONTRACEPTION AND CIVIL RIGHTS

Social and cultural issues have also been a focus of ACA litigation. Two provi-

sions of the ACA, sections 1557 and 2713, broaden protection for civil rights and

preventive services respectively. These sections have received particular scrutiny,

and have become the subject of intense litigation because they have been applied

to extend protection to contraception, to women who have terminated pregnan-

cies, and to transgender individuals. One arm of that litigation—the cases con-

cerning the ACA’s requirement that insurance plans provide contraception

without cost-sharing (the so-called “contraceptive mandate”)—has already been

taken up by the Supreme Court twice and the Court in May 2020 heard oral argu-

ment in a third case on the issue.

184

Another arm—civil rights—is implicated by

three consolidated cases pending before the Court at the time of this Article.

1. Contraception

Section 2713 of the ACA requires coverage of certain preventive healthcare

services without

cost sharing—i.e., without paying anything at the point of

serv-

ice.

185

The preventive services were deﬁned as including, among other things:

“evidence-based items or services that have in effect a rating of ‘A’ or ‘B’ in the

current recommendations of the United States Preventive Services Task

Force,”

186

Id. § 300gg-13(a)(1). For the list of preventive services the U.S. Preventive Services Taskforce

has given an A or B grade, see USPSTF A and B Recommendations, U.S. P

REVENTIVE SERVICES TASK

FORCE (Dec. 2019), https://perma.cc/P9KT-ME9B.

a category that includes services like blood pressure screenings and

colonoscopies, and “with respect to women, such additional preventive care and

screenings not described in paragraph (1) as provided for in comprehensive

guidelines supported by the Health Resources and Services Administration for

purposes of this paragraph.”

187

insurers who successfully sued for CSRs would get an impermissible double recovery given that states have

already raised their rates to compensate for the CSR loss. The day after oral argument, the Federal Circuit

ordered supplemental brieﬁng “addressing in more detail the question of whether, assuming liability under

the appellees’ statutory and/or implied-in-fact contract theories, a reduction in damages is available to the

appellant if the appellees’ loss was diminished as a result of increases in premiums and tax credits.” Cmty.

Health Choice v. United States, No. 19-1633 (Fed Cir. Jan. 10, 2020).

182. See, e.g., Blue Cross & Blue Shield of Vt. v. United States, No. 18-373-C (Fed. Cl. Sep. 25,

2019); Noridian Mutual Ins. Co. v. United States, No. 18-1983-C (Fed. Cl. July 9, 2019); Health All.

Med. Plans, Inc. v. United States, No. 18-334-C (Fed. Cl. Mar. 28, 2019).

183. House v. Azar, No. 14-1967 (RMC) (D.D.C. May 18, 2018).

184. Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct. 918 (2020)

(mem.), consolidated with Trump v. Pennsylvania, 140 S. Ct. 918 (2020) (mem.).

185. 42 U.S.C. § 300gg-13(a) (2012).

186.

187. 42 U.S.C. § 300gg-13(a)(4).

1500 THE GEORGETOWN LAW JOURNAL [Vol. 108:1471

After the ACA’s passage, HHS, relying on the Health Resources and Services

Administration guidelines, interpreted this to include coverage for all Food and

Drug Administration approved methods of contraception.

188

Women’s Preventive Services Guidelines, HEALTH RES. & SERVS. ADMIN., https://www.hrsa.

gov/womens-guidelines-2016/index.html (last updated Oct. 2019) [https://perma.cc/95W9-J4X4]. While

the Act

does not use the word “contraception,” contraception is a principal subject of the guidelines that

the ACA cross-references. HHS relied on recommendations from the Institute of Medicine to determine

what would constitute preventive care for the purpose of required coverage without cost-sharing. See

Women’s Preventive Services, D

EP’T OF HEALTH AND HUMAN SERVS., https://www.hhs.gov/opa/title-x-

family-planning/preventive-services/womens-services/index.html [https://perma.cc/RC5C-DECZ] (last

updated May 3, 2017).

Because all plans,

including employer plans, are required to provide preventive health services

with-

out

cost-sharing,

189

HHS’s interpretation meant that these employers had to pro-

vide

health insurance that included contraceptive coverage.

There were no exceptions in the ACA for employers who had religious objections

to providing required preventive services, including contraception for employees.

However, relying on the Religious Freedom Restoration Act (RFRA)—which

pro-

hibits

the government from substantially burdening a person’s exercise of religion

except if the government is acting to further a compelling government interest and is

using the least restrictive means of doing so

190

—the Obama Administration

exempted certain religious employers, including houses of worship, from the

requirement through its 2011 Interim Final Rule.

191

Employers with religious objec-

tions

who did not qualify as religious employers under the 2011 Interim Final Rule

ﬁled lawsuits under RFRA.

192

The Administration eventually announced it would

delay enforcement of the Interim Final Rule against certain religious nonproﬁts

pending additional rulemaking regarding religious exceptions and

accommoda-

tions.

193

See D

IPTI SINGH, NATIONAL HEALTH LAW PROGRAM, CONTRACEPTIVE COVERAGE

REQUIREMENT TIMELINE (July 23, 2013), https://healthlaw.org/resource/contraceptive-coverage-

requirement-timeline/ [https://perma.cc/FF3Y-PUZA] (noting a safe harbor from the 2011 Interim Final

Rule for religious afﬁliated nonproﬁt groups pending the Administration’s development of an

accommodations process).

Thus, many of these initial lawsuits challenging some religious nonproﬁts’

exclusion from the initial exemption were dismissed as unripe.

194

188.

189. 42 U.S.C. § 300gg-13(a)(4).

190. See Religious Freedom Restoration Act of 1993, Pub. L. No. 103-141, § 3, 107 Stat. 1488,

1488–89 (codiﬁed at 42 U.S.C. § 2000bb-1(a)–(b) (2012)).

191. See Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive

Services Under the Patient Protection and Affordable Care Act, 76 Fed. Reg. 46,621, 46,625–26 (Aug.

3, 2011) (to be codiﬁed at 45 C.F.R. pt. 147). A religious employer for the purposes of the exemption is

“one that: (1) has the inculcation of religious values as its purpose; (2) primarily employs persons who

share its religious tenets; (3) primarily serves persons who share its religious tenets; and (4) is a

nonproﬁt organization under section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the [Internal

Revenue] Code.” See id. at 46,623. Sections 6033(a)(3)(A)(i) and (iii) refer to churches, churches’

integrated auxiliaries, and conventions or associations of churches, as well as to the “exclusively

religious activities of any religious order.” See 26 U.S.C. § 6033(a)(3)(A) (2012).

192. See, e.g., Eternal Word Tel. Network v. Sebelius, 935 F. Supp. 2d 1196, 1207–08 (N.D. Ala.

2013); Belmont Abbey Coll. v. Sebelius, 878 F. Supp. 2d 25, 29 (D.D.C. 2012).

193.

194. See Eternal Word, 935 F. Supp. 2d at 1223 (granting motion to dismiss based on lack of

ripeness); Belmont Abbey, 878 F. Supp. 2d at 37, 39 (granting motion to dismiss based on lack of

standing and ripeness).

2020] THE AFFORDABLE CARE ACT’S LITIGATION DECADE 1501

In 2013, the Administration promulgated a rule that created a regulatory mech-

anism for other nonproﬁt organizations with religious objections—employers not

covered by the 2011 exemption—developing an accommodations process to

make sure female employees still had access to the full spectrum of cost-free con-

traception while taking into account employers’ religious objections.

195

For-proﬁt companies owned by individuals with religious objections, however,

were not eligible for either the exemption under the 2011 Interim Final Rule or

the accommodation under the 2013 Final Rule.

196

They sued, asserting that the

contraceptive mandate violated RFRA. This gave rise, in 2014, to the second

ACA case in the Supreme Court—Burwell v. Hobby Lobby Stores—decided

between NFIB and King.

197

In Hobby Lobby, the Court held that the government could not require closely

held for-proﬁt corporations with religious objections to provide contraceptive

coverage.

198

As part of its analysis, the Court found that applying the contracep-

tive

mandate to these employers was not the least restrictive means of achieving

the government interest due to the existence of the accommodations process for

religious nonproﬁts.

199

The Court posited that this accommodations process could

be extended to closely held for-proﬁts with religious objections, without

explic-

itly

deciding whether the accommodations process itself was consistent with

RFRA.

200

By ﬁnding that certain for-proﬁt businesses had free exercise rights

under RFRA, Hobby Lobby provided a new roadmap for litigants, especially for-

proﬁt businesses, with religious objections seeking to gain exemptions from

gen-

erally

applicable laws, even when those exemptions would work to the detriment

of third parties. Businesses with religious objections have used the case, for

example, to argue they need not comply with state and local antidiscrimination

laws that protect against discrimination on the basis of sexual orientation,

extend-

ing

the reasoning of Hobby Lobby even beyond the RFRA context.

201

195. See Coverage of Certain Preventive Services Under the Affordable Care Act, 78 Fed. Reg.

39,870, 39,873–82 (July 2, 2013) (to be codiﬁed at 45 C.F.R. pts. 147, 156). Under the accommodation,

eligible employers would notify their insurer of their objection and the insurer or administrator would

then directly ensure that employees received the required contraceptive coverage without cost-sharing.

See id. at 39,876.

196. See id. at 39,875 (“[T]he deﬁnition of eligible organization[s] in these ﬁnal regulations does not

extend to for-proﬁt organizations.”).

197. See 573 U.S. 682 (2014).

198. Id. at 736. For other cases dealing with religious objections from for-proﬁt employers, see, for

example, Gilardi v. United States Department of Health & Human Services, 733 F.3d 1208 (D.C. Cir.

2013), vacated, 573 U.S. 956 (2014).

199. See Hobby Lobby, 573 U.S. at 692.

200. Id. at 731.

201. For example, Masterpiece Cakeshop v. Colorado Civil Rights Commission, 138 S. Ct. 1719

(2018), used Hobby Lobby’s reasoning but was not a RFRA case. For more on the role of Hobby Lobby

in LGBT rights and nondiscrimination cases, see Olivia Brown et al., Religious Exemptions, 20 G

EO. J.

ENDER & L. 397, 407–08 (2019); Ira C. Lupu, Moving Targets: Obergefell, Hobby Lobby, and the

Future of LGBT Rights, 7 A

LA. C.R. & C.L. L. REV. 1, 63–69 (2015); Jennifer C. Pizer, Navigating the

Mineﬁeld: Hobby Lobby and Religious Accommodation in the Age of Civil Rights, 9 H

ARV. L. & POL’Y

REV. 1, 5 (2015).

1502 THE GEORGETOWN LAW JOURNAL [Vol. 108:1471

Nonproﬁt employers with religious objections continued to challenge the

accommodations process.

202

In 2014, the federal government issued another

Interim Final Rule that provided another alternative accommodation for employ-

ers with religious objections: rather than submit a form to the insurer or adminis-

trator, they could instead inform HHS in writing of their objection.

203

Objecting

employers continued to argue that the requirement made them complicit in the

provision of contraceptive coverage (or certain forms of contraception they

believed amounted to abortion), violating their religious beliefs. The lower courts

divided on the issue

204

and the Supreme Court granted review in Zubik v.

Burwell.

205

In a May 2016 per curiam opinion, the Court vacated all of the lower

court decisions, declined to reach the merits of the issue, and directed the

govern-

ment

and the challengers to again attempt to resolve the dispute through the

administrative process.

206

The 2016 election, just six months after the Court’s decision in Zubik, pro-

duced

an administration much more hostile to the contraceptive mandate. The

Trump Administration promulgated interim ﬁnal rules in October 2017

207

and

202. See, e.g., Wheaton Coll. v. Burwell, 573 U.S. 958, 958–59 (2014); Little Sisters of the Poor

Home for the Aged v. Sebelius, 134 S. Ct. 1022, 1022 (2014). In 2014, shortly after announcing its

decision in Hobby Lobby, the Court decided that Wheaton College did not have to submit a self-

certiﬁcation form to its third-party administrator, a component of the regulatory accommodation that the

religious nonproﬁt objected to, in order to obtain an injunction pending appeal. Wheaton Coll., 573 U.S.

at 959. The Supreme Court also granted emergency relief to Little Sisters of the Poor in its lawsuit

challenging the accommodation, but it did not decide the merits. Little Sisters of the Poor, 134 S. Ct. at

1022.

203. Coverage of Certain Preventive Services Under the Affordable Care Act, 79 Fed. Reg. 51,092,

51,094 (Aug. 27, 2014) (to be codiﬁed at 45 C.F.R. pt. 147). This alternative accommodation was

created in response to the Supreme Court’s order in Wheaton. See id. The Final Rule was issued in July

2015. Coverage of Certain Preventive Services Under the Affordable Care Act, 80 Fed. Reg. 41,318

(July 14, 2015) (to be codiﬁed at 45 C.F.R. pt. 147).

204. Several district courts granted preliminary and subsequently permanent injunctions ﬁnding that

complying with the accommodation posed a substantial burden on employers’ religious beliefs. See

Catholic Diocese of Beaumont v. Sebelius, 10 F. Supp. 3d 725, 736 (E.D. Tex. 2014); E. Tex. Baptist

Univ. v. Sebelius, 988 F. Supp. 2d 743, 772 (S.D. Tex. 2013); S. Nazarene Univ. v. Sebelius, No. CIV-

13-1015-F, 2013 WL 6804265, at *11 (W.D. Okla. Dec. 23, 2013); Reaching Souls Int’l, Inc. v.

Sebelius, No. CIV-13-1092-D, 2013 WL 6804259, at *8 (W.D. Okla. Dec. 20, 2013); Roman Catholic

Archbishop of Wash. v. Sebelius, 19 F. Supp. 3d 48, 82 (D.D.C. 2013) (ﬁnding at least one plaintiff was

entitled to summary judgment on its RFRA claim); Zubik v. Sebelius, 983 F. Supp. 2d 576 (W.D. Pa.

2013); Geneva Coll. v. Sebelius, 960 F. Supp. 2d 588 (W.D. Pa. 2013).

The courts of appeals that heard these cases were united in ﬁnding that the accommodations process

did not violate RFRA. See Little Sisters of the Poor Home for the Aged v. Burwell, 794 F.3d 1151, 1160

(10th Cir. 2015); E. Tex. Baptist Univ. v. Burwell, 793 F.3d 449, 452 (5th Cir. 2015); Geneva Coll. v.

Sec’y U.S. Dep’t of Health & Human Servs., 778 F.3d 422, 427 (3d Cir. 2015); Priests for Life v. U.S.

Dep’t of Health & Human Servs., 772 F.3d 229, 237 (D.C. Cir. 2014).

205. 136 S. Ct. 1557 (2016) (per curiam).

206. See id. at 1560.

207. Religious Exemptions and Accommodations for Coverage of Certain Preventive Services Under

the Affordable Care Act, 82 Fed. Reg. 47,792 (Oct. 13, 2017) (to be codiﬁed at 45 C.F.R. pt. 147); Moral

Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable

Care Act, 82 Fed. Reg. 47,838 (Oct. 13, 2017) (to be codiﬁed at 45 C.F.R. pt. 147).

2020] THE AFFORDABLE CARE ACT’S LITIGATION DECADE 1503

ﬁnal rules in November 2018

208

that expanded the exemption to a much broader

range of employers with religious, or even nonreligious, moral objections.

209

This

time, several states challenged this exemption as too broad. In 2019, the Third

Circuit held that the 2018 Final Rule violated the APA and upheld a nationwide

injunction enjoining the rule.

210

The Supreme Court heard the case in the spring

of 2020.

211

At the same time, a different federal court—in a matter intentionally brought

to the same judge, Judge Reed O’Connor, who has presided over several ACA

challenges including California v. Texas—issued a permanent injunction against

the Obama Administration’s accommodations process and the underlying

contra-

ceptive

mandate.

212

The court enjoined the mandate against two nationwide

classes which include all employers and individuals who object to contraceptive

coverage based on sincerely held religious beliefs

213

—a far broader employer

class than the closely held corporations represented in Hobby Lobby.

214

The result? Conﬂicting nationwide injunctions are currently in place, creating

a unique situation in which the courts have both enjoined the Trump

Administration’s policy and the Obama Administration’s policy, and different

rules apply depending on whether the employer is covered by the Texas court’s

injunction or not. The Fifth Circuit stayed the appeal of the Texas district court

decision pending the Supreme Court’s decision in the upcoming Pennsylvania

challenge to the Trump rules.

215

208. Religious Exemptions and Accommodations for Coverage of Certain Preventive Services Under

the Affordable Care Act, 83 Fed. Reg. 57,536 (Nov. 15, 2018) (to be codiﬁed at 45 C.F.R. pt. 147);

Moral Exemptions and Accommodations for Coverage of Certain Preventive Services Under the

Affordable Care Act, 83 Fed. Reg. 57,592 (Nov. 15, 2018) (to be codiﬁed at 45 C.F.R. pt. 147). The

Administration expanded the availability of an exemption to those with nonreligious moral objections

with no apparent statutory basis.

209. The new rules take the position that the government lacks a compelling interest in women

having access to contraception through employers with objections to providing comprehensive

contraceptive coverage and that any nongovernmental employer with such an objection should not have

to provide that coverage. See Religious Exemptions and Accommodations for Coverage of Certain

Preventive Services Under the Affordable Care Act, 83 Fed. Reg. at 57,546–48.

210. See Pennsylvania v. President United States, 930 F.3d 543, 556 (3d Cir. 2019). Courts

previously granted preliminary injunctions enjoining the 2017 Interim Final Rules. See California v.

Dep’t of Health & Human Servs., 281 F. Supp. 3d 806 (N.D. Cal. 2017); Pennsylvania v. Trump, 281 F.

Supp. 3d 553 (E.D. Pa. 2017).

211. See Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct. 918 (2020)

(mem.), consolidated with Trump v. Pennsylvania, 140 S. Ct. 918 (2020) (mem.). Argument was to take

place May 6, 2020.

212. See DeOtte v. Azar, 393 F. Supp. 3d 490, 514 (N.D. Tex. 2019).

213. See id. at 513–14.

214. This class includes every employer, regardless of size or corporate form, that objects to

contraceptive coverage. See id. at 508 n.8.

215. See id., appeal docketed, No. 19-10754 (5th Cir. July 5, 0219), and stayed granted, No. 19-

10754 (5th Cir. Jan. 29, 2020) (granting stay of appeal pending the Supreme Court’s rulings in Little

Sisters of the Poor Home for the Aged v. Pennsylvania and Trump v. Pennsylvania).

1504 THE GEORGETOWN LAW JOURNAL [Vol. 108:1471

Yet another case regarding the contraceptive mandate is currently moving for-

ward in the Seventh Circuit.

216

The claims are against both the federal govern-

ment—

challenging the Trump rules—and the University of Notre Dame,

challenging a settlement agreement between Notre Dame and the Trump

Administration that exempts the university from all current and any future

requirements with respect to the contraceptive mandate.

217

These cases, in an important sense, relate to the ongoing theme of disputes

relating to the ACA’s efforts toward solidarity. By establishing beneﬁts that all

plans must cover, the ACA envisions a framework in which everyone, regardless

of the plan type they enroll in, would have access to core, uniform healthcare

services. The contraceptive-mandate cases raise the question of whether, in an

employment-based healthcare system, employers should be permitted to decline

to provide their employees with healthcare services the employers object to.

Further, it remains to be seen whether the Court’s broad conception of free

exercise rights under RFRA in these cases will extend to other types of healthcare

services, like vaccines or blood transfusions, which some object to, or whether

matters of women’s health (particularly contraception and abortion) are treated

sui generis by the Court. The majority in Hobby Lobby did recognize that access

to contraception is a constitutional right,

218

but it did not seem to grasp the impor-

tance

of access to contraception as preventive care within the ACA’s statutory

scheme. Now that the Court has agreed to hear its third contraceptive-mandate

case, it might be forced to answer questions it has long seemed to avoid: Is the

accommodations process itself a burden on employers’ free exercise rights under

RFRA, and, ultimately, which rights will prevail when in conﬂict—employers’

rights under RFRA or women’s rights to access to contraception under the

Court’s fundamental rights precedents and the ACA?

2. Civil Rights

Section

1557 of the ACA prohibits discrimination on the basis of race, color,

national origin, sex, age, or disability in certain health programs and activities.

219

Preexisting nondiscrimination law had applied to some healthcare programs, and

section 1557 extended its protection to individuals participating in any health pro-

gram or activity that receives funding from HHS, in full or in part, any health pro-

gram or activity that HHS itself administers, any health insurance marketplaces,

and all plans offered by insurers that participate in the marketplace.

220

Cases ﬁled

under section 1557 have included allegations of disability discrimination against

216. Irish 4 Reproductive Health v. United States Dep’t of Health & Human Servs., No. 3:18-CV-

491-PPS-JEM, 2020 WL 248009 (N.D. Ind. Jan. 16, 2020).

217. Id. The issues are distinct from the issues presented in Trump v. Pennsylvania. One difference is

that, in the dispute over the Notre Dame settlement agreement, women needing contraception are

participating as parties. See infra note 381.

218. Burwell v. Hobby Lobby Stores, Inc. 573 U.S. 682, 727 (2014).

219. See 42 U.S.C. § 18116(a) (2012).

220. See id.

2020] THE AFFORDABLE CARE ACT’S LITIGATION DECADE 1505

people with hearing loss,

221

discriminatory failure to provide comprehensive

breastfeeding and lactation support services,

222

disability discrimination over

plan limitations on specialty medications for HIV/AIDS,

223

discriminatory over-

pricing of drugs to treat Hepatitis C,

224

and sex discrimination in failure to pre-

scribe fentanyl for Global Diffuse Adenomyosis.

225

Although section 1557 has been in effect since the passage of the ACA, the

HHS Ofﬁce for Civil Rights issued the Final Rule to implement the provision in

May 2016.

226

That rule interpreted discrimination on the basis of sex to include

discrimination based on gender identity and pregnancy termination. Several

states and religious healthcare providers, including the Catholic hospital system

Franciscan Alliance, challenged this aspect of the rule under the Administrative

Procedure Act (APA) and RFRA—again before Judge O’Connor in Texas. In

December 2016, Judge O’Connor granted a nationwide preliminary injunction to

prevent enforcement of the provision.

227

Other litigants have brought cases concerning the same issue and other courts

have found that the statutory language in section 1557 does indeed protect against

discrimination in healthcare based on gender identity.

228

Some of these cases rely

on the theory that failure to provide gender-conﬁrmation surgery is

discrimina-

tion

based on a disability: gender dysphoria.

229

221. Complaint at 3, E.S. by and through R.S. v. Regence Blueshield, No. 2:17-cv-1609, 2018 WL

4566053 (W.D. Wash. Sept. 24, 2018) (alleging discrimination in plans’ failure to provide hearing aids);

Complaint at 3, Schmitt v. Kaiser Found. Health Plan of Wash., No. 2:17-cv-1611, 2018 WL 4385858

(W.D. Wash. Sept. 14, 2018) (alleging discrimination in plans’ failure to provide treatment of hearing

loss); Complaint at 3, Audia v. Briar Place, Ltd., No. 1:17-cv-6618, 2018 WL 1920082 (N.D. Ill., Apr.

24, 2018) (settled); Complaint at 2, Esparza v. Univ. Med. Ctr. Mgmt. Corp., No. 2:17-cv-4803, 2017

WL 4791185 (E.D. La. Oct. 24, 2017) (alleging providers’ failure to provide interpreter) (settled).

222. See, e.g., York v. Wellmark, Inc., No. 4:16-cv-00627-RGE-CFB, 2019 WL 1493715, at *1

(S.D. Iowa Feb. 28, 2019); Condry v. UnitedHealth Grp., Inc., No. 17-cv-00183-VC, 2018 WL 3203046,

at *1 (N.D. Cal. June 27, 2018); Briscoe v. Health Care Serv. Corp., 281 F. Supp. 3d 725, 728 (N.D. Ill.

2017).

223. See, e.g., Doe v. BlueCross BlueShield of Tenn., Inc., 926 F. 3d 235, 238 (6th Cir. 2019).

224. See Se. Pa. Transp. Auth. v. Gilead Scis., 102 F. Supp. 3d 688, 693, 701 (E.D. Pa. 2015)

(dismissed for failure to state a section 1557 claim).

225. See Weinreb v. Xerox Bus. Servs., LLC Health & Welfare Plan, 323 F. Supp. 3d 501, 504, 522

(S.D.N.Y. 2018) (dismissed for failure to state a section 1557 claim).

226. Nondiscrimination in Health Programs and Activities, 81 Fed. Reg. 31,376 (May 18, 2016) (to

be codiﬁed at 45 C.F.R. pt. 92).

227. Franciscan All., Inc. v. Burwell, 227 F. Supp. 3d 660, 670 (N.D. Tex. 2016).

228. Other cases could be brought because section 1557 includes a private right of action and Judge

O’Connor’s ruling applied only to HHS. See, e.g., Tovar v. Essentia Health, 342 F. Supp. 3d 947, 956

(D. Minn. 2018) (settled); Boyden v. Conlin, 341 F. Supp. 3d 979, 998 (W.D. Wis. 2018).

Other section 1557 cases challenging discrimination against transgender people include: Flack v.

Wisconsin Department of Health Services, 395 F. Supp. 3d 1001 (W.D. Wis. 2019) (concerning failure

by Medicaid program to provide appropriate treatment for gender dysphoria); Edmo v. Idaho

Department of Correction, 358 F. Supp. 3d 1103 (D. Idaho 2018) (concerning an inmate seeking gender-

conﬁrmation surgery), aff’d in part, rev’d in part sub nom. Edmo v. Corizon, Inc., 935 F.3d 757 (9th Cir.

2019); Prescott v. Rady Children’s Hospital–San Diego, 265 F. Supp. 3d 1090 (S.D. Cal. 2017)

(concerning failure by hospital to provide appropriate treatment for gender dysphoria) (settled); and

Rumble v. Fairview Health Services, No. 14-cv-2037, 2015 WL 1197415 (D. Minn. Mar. 16, 2015).

229. See, e.g., Flack, 395 F. Supp. 3d at 1003–10.

1506 THE GEORGETOWN LAW JOURNAL [Vol. 108:1471

The Trump Administration declined to defend the 2016 Final Rule and, in June

2019, issued a proposed rule amending the Obama Era rule to exclude protection

for discrimination on the basis of gender identity and termination of pregnancy.

230

Four months later, Judge O’Connor issued a ﬁnal judgment in Franciscan

Alliance, Inc. v. Azar,

231

vacating the provisions of the 2016 rule prohibiting dis-

crimination

on the basis of gender identity and termination of pregnancy and

holding that they violated the APA and RFRA.

232

At the time of this writing, the

appeal—Franciscan Alliance itself is appealing, asserting that Judge O’Connor’s

decision did not go far enough to protect it from 1557—is pending in the Fifth

Circuit.

233

At the same time, the Supreme Court in October 2019 heard a consolidated

case that presented the question of whether the word “sex” in Title VII of the

Civil Right Act includes sexual orientation and gender identity.

234

The Court’s

ruling in that case may affect the future construction of “sex” in section 1557 of

the ACA by the courts of appeals.

Another signiﬁcant question concerns whether section 1557 strengthens

vari-

ous

existing antidiscrimination statutes, such as the Americans with Disabilities

Act, and harmonizes them with each another or whether it merely makes the

existing statutes more applicable to health insurance.

235

For example, one emerg-

ing question is whether litigants can bring disparate impact, disability discrimina-

tion cases under section 1557. Lower courts have divided on the question as have

the Obama and Trump Administrations.

236

At the time of this writing, the Ninth

Circuit is considering the disparate impact issue in two cases about alleged

dis-

crimination

on the basis of hearing loss by health plans.

237

230. The proposed rule makes additional changes to the 2016 rule. Aside from eliminating the gender

identity and termination of pregnancy provisions, it includes a relaxation of the Obama Administration’s

language-access requirements. See Nondiscrimination in Health and Health Education Programs or

Activities, 84 Fed. Reg. 27,846 (proposed June 14, 2019) (to be codiﬁed at 42 C.F.R. pts. 438, 440, 460).

231. 414 F. Supp. 3d 928, 946–47 (N.D. Tex. 2019).

232. Id. at 945–46.

233. The district court granted the ACLU’s and the River Gender City Alliance’s motion to

intervene, thus allowing those organizations to participate in the appeal. See id. at 936–37.

234. See Bostock v. Clayton County, No. 17-1618 (argued Oct. 8, 2019); Altitude Express, Inc. v.

Zarda, No. 17-1623 (argued Oct. 8, 2019); R.G. & G.R. Harris Funeral Homes, Inc., v. EEOC, No. 18-

107 (argued Oct. 8, 2019) (cases consolidated).

235. The antidiscrimination statutes giving rise to section 1557 are Title VI of the Civil Rights Act

(race, color, and national origin), Title IX of the Education Act Amendments (sex), the Age

Discrimination Act, and section 504 of the Rehabilitation Act (handicap discrimination).

236. Compare Rumble, 2015 WL 1197415, at *11 n.6 (holding the ACA did align the various

statutes) and Nondiscrimination in Health Programs and Activities, 81 Fed. Reg. 31,376, 31,439–41 (to

be codiﬁed at 45 C.F.R. pt. 92) (May 18, 2016), with Doe v. BlueCross BlueShield of Tenn., Inc., 926

F.3d 235, 238–43 (6th Cir. 2019), and Nondiscrimination in Health and Health Education Programs or

Activities, 84 Fed. Reg. at 27,850–51.

237. See Schmitt v. Kaiser Found. Health Plan of Wash., No. C17-1611RSL, 2018 WL 4385858 (9th

Cir. Oct. 12, 2018); E.S. by and through R.S. v. Regence BlueShield, C17-01609, 2018 WL 4566053

(W.D. Wash. Sept. 24, 2018), appeal ﬁled, No. 18-35892 (9th Cir. Oct. 23, 2018); see also E.S. by and

through R.S. & J.S. v. Regence BlueShield, No. 18-35892, slip op. at 1 (9th Cir. Oct. 15 2019).

2020] THE AFFORDABLE CARE ACT’S LITIGATION DECADE 1507

In May 2018, the HHS Ofﬁce for Civil Rights (OCR) ﬁnalized a series of

so-called “conscience” rules to implement what OCR characterized as a

se-

ries

of statutory provisions (including sections of the ACA

238

) protecting

individual and entity rights not to participate in healthcare to which the

indi-

viduals

or entities objected.

239

Under the new rules, medical providers could

refuse care that they disagreed with for religious or moral reasons.

240

States,

local governments, and providers sued, objecting to the new system for

cut-

ting

off all federal funds to a provider that required employees to violate the

rules.

241

As of this writing, district courts in New York, California, and

Washington had vacated the rule.

242

In the New York case, the court held that

the new rules made unjustiﬁed changes in prior policy and coerced providers

and states in violation of the NFIB anticoercion holding.

243

The federal gov-

ernment

is appealing.

244

Interestingly, antidiscrimination litigation has also challenged tensions within

the ACA itself. For example, the ACA promotes “wellness programs,” which

reward individuals for healthy behaviors and lifestyles by establishing “rewards”

of up to 30% of the cost of employee-only coverage.

245

Commentators have noted

the tension between these provisions and the ACA’s broader principle of no

dis-

crimination

based on health status.

246

The EEOC’s regulations implementing

wellness programs have been successfully challenged under the APA. A federal

district court in Washington, D.C. found that the agency did not adequately

238. The ACA was among the statutes that the Administration stated it was implementing. In its

rules, OCR cited sections 1553 (banning discrimination by entities receiving federal funding against

providers that do not provide assisted suicide), 1303 (requiring that qualiﬁed health plans segregate

funds for abortion services), and 1411 (discussing the availability of hardship exemptions from the

penalty for failure to comply with the individual mandate). See Protecting Statutory Conscience Rights

in Health Care; Delegations of Authority, 84 Fed. Reg. 23,170, 23,172 (May 21, 2019) (to be codiﬁed at

45 C.F.R. pt. 88).

239. See id. at 23,170.

240. See id.

241. See, e.g., California v. Azar, No. 4:19-cv-02769 (N.D. Cal. ﬁled Nov. 19, 2019); County of

Santa Clara v. U.S. Dep’t of Health & Human Servs., No. 3:19-cv-02916 (N.D. Cal. May 28, 2019); City

& County of San Francisco v. Azar, No. 3:19-cv-02405 (N.D. Cal. ﬁled May 2, 2019); see also

Washington v. Azar, No. 2:19-cv-00183-SAB, 2019 WL 6219541 (E.D. Wash. Nov. 21, 2019); New

York v. U.S. Dep’t of Health & Human Servs., No. 1:19-cv-04676-PAE, 2019 WL 3531960 (S.D.N.Y.

Nov. 6, 2019); Planned Parenthood v. U.S. Dep’t of Health & Human Servs., No. 1:19-cv-05435-PAE

(S.D.N.Y. Nov. 6, 2019).

242. City & County of San Francisco v. Azar, No. 411 F. Supp. 3d 1001 (N.D. Cal. 2019); New York

v. U.S. Dep’t of Health & Human Servs., 2019 WL 3531960; Washington v. Azar, 2019 WL 6219541.

243. See New York v. U.S. Dep’t of Health & Human Servs., 2019 WL 3531960.

244. Notice of Appeal, Washington v. Azar, No. 2:19-cv-00183-SAB (E.D. Wash. Jan. 17, 2020);

Notice of Appeal, New York v. U.S. Dep’t of Health & Human Servs., No. 1:19-cv-04676-PAE (S.D.N.Y.

Jan. 3, 2020); Notice of Appeal, City & County of San Francisco v. Azar, No. 19-cv-2405-WHA (N.D.

Cal. Mar. 6, 2020); Notice of Appeal, County of Santa Clara v. U.S. Dep’t of Health & Human Servs., No.

19-cv-02916-WHA (N.D. Cal. Mar. 6, 2020).

245. See 42 U.S.C. § 300gg-4(j) (2012).

246. See, e.g., Tom Baker, Health Insurance, Risk, and Responsibility After the Patient Protection

and Affordable Care Act, 159 U. P

A. L. REV. 1577, 1603–07 (2011).

1508 THE GEORGETOWN LAW JOURNAL [Vol. 108:1471

explain how the programs would avoid discrimination against those with disabil-

ities and health conditions and be truly “voluntary” as the ACA requires.

247

antidiscrimination lawsuit against a private employer that operates a wellness

program—Yale University—is also pending.

248

D. DEFENDING AGAINST A NEW ADMINISTRATION HOSTILE TO THE LAW: MEDICAID

WORK REQUIREMENTS, IMMIGRANT ACCESS, AND EFFORTS TO UNDERMINE THE

INSURANCE POOLS

The most recent phase of the ACA’s litigation story has been one of shifting

momentum in the courts. Since 2018, lawsuits have been ﬁled more frequently

“not to challenge the law but to afﬁrmatively defend and enforce it.”

249

Of course,

that momentum has been spurred in part by mirroring changes in the Executive

Branch. The Trump Administration arrived with open hostility to the ACA—

President Trump’s ﬁrst executive order directed his agencies to “waive, defer,

grant exemptions from, or delay the implementation of any provision or require-

ment of the [ACA]” that the Administration deemed to be ﬁnancially or regulato-

rily burdensome.

250

President Trump has repeatedly stated that the defeat of ACA

repeal in Congress “doesn’t matter” because

“[w]e gutted it anyway”

251

Laura Litvan (@LauraLitvan), T

WITTER (June 23, 2018, 1:04 PM), https://perma.cc/27Z3-

77BA.

and that,

“[W]e’re doing it a different way. We have to go a different route.”

252

President Trump Calls the Show!, R

USH LIMBAUGH SHOW (Aug. 1, 2018), https://www.

rushlimbaugh.com/daily/2018/08/01/president-trump-calls-the-show/amp/ [https://perma.cc/Y7JW-

BQT8].

These actions galvanized a new wave of afﬁrmative defensive litigation in sup-

port

of the ACA. Not only did almost two dozen states intervene to defend the

ACA in California v. Texas, but the House of Representatives intervened as well

as soon as the Democrats regained control in 2018.

253

And dozens of other law-

suits have also been ﬁled in support of the law. Among these are the many impor-

tant insurance-payment-related cases already discussed.

254

In addition, cases have been brought by states and consumer organizations

challenging the legality of the Trump Administration’s new rules that aim to

undermine the ACA’s universal access goals. Those rules include new rules that

would allow states to impose work requirements on Medicaid recipients, new

247. AARP v. EEOC, 267 F. Supp. 3d 14 (D.D.C. 2017); see also AARP v. EEOC, 92 F. Supp. 3d

238, 238 (D.D.C. Dec. 2017).

248. See First Amended Complaint ¶¶ 1–8, Kwesell v. Yale Univ., No. 3:19-cv-01098 (KAD) (D.

Conn. Oct. 17, 2019).

249. See Gluck & Scott-Railton, supra note 13, at 529.

250. Exec. Order No. 13,765, 82 Fed. Reg. 8351, 8351 (Jan. 24, 2017); see also Complaint for

Declaratory and Injunctive Relief ¶ 108, City of Columbus v. Trump, No. 1:18-cv-02364-DKC (D. Md.

Aug. 2, 2018), 2018 WL 3655066.

251.

252.

253. See Opposed Motion

of the U.S. House of Representatives to Intervene and Memorandum of

Points and Authorities in Support Thereof, Texas v. United States, 352 F. Supp. 3d. 665 (N.D. Tex.

2019), 2019 WL 114796.

254. See supra Section III.A.

2020] THE AFFORDABLE CARE ACT’S LITIGATION DECADE 1509

rules aimed to dissuade immigrants from accessing healthcare, and rules that

offer pathways out of the ACA insurance markets and protections.

255

1. Chipping Away at Medicaid

Congress drafted the ACA to make Medicaid expansion mandatory for all

states, creating a new federal ﬂoor to allow individuals with incomes of up to

138% of the FPL to be eligible for Medicaid in every state.

256

In this way,

Congress took a large step toward “universalizing” Medicaid, shifting the

pro-

gram

from one based on categorical eligibility and the concept of the “deserving

poor” to a program that would cover all low-income Americans based on their

socioeconomic status alone.

257

The Supreme Court’s decision in NFIB changed

that. By in effect transforming Medicaid expansion into a state option to opt out,

the Supreme Court not only undermined the universality of the Medicaid

expan-

sion

as Congress drafted it, but also gave states new leverage in negotiations with

the federal government over their Medicaid programs.

The Obama Administration’s goal was to get as many states to expand as

possi-

ble.

258

Thus, it allowed states to implement their preferred policies by generously

approving administrative waivers under section 1115 in exchange for Medicaid

expansion.

259

Section 1115 of the Social Security Act, which predates the ACA,

gives the Secretary of the Department of Health and Human Services the author-

ity to approve state demonstration projects that “promot[e] the objectives” of the

Medicaid program.

260

To bring states on board, the Obama Administration allowed more conserva-

tive states to expand Medicaid in ways not always popular with progressives,

including by expanding coverage through premium assistance in the private mar-

ket rather than with traditional Medicaid, increasing cost-sharing requirements

(co-pays) above the levels allowed by the statute, eliminating the requirement to

provide nonemergency medical transportation, and instituting lockout periods for

nonpayment of premiums.

261

See Medicaid Waiver Tracker: Approved and Pending Section 1115 Waivers by State, K

AISER

FAMILY FOUND. (Mar. 10, 2020), https://perma.cc/ZW29-VHXM.

However, the Administration drew the line at partial

expansion—it refused to approve waiver requests that would have allowed states

failing to cover all individuals under the ACA’s 138% FPL threshold to receive

the full ﬁnancial beneﬁts of the Medicaid expansion

262

The Obama Administration’s 2012 guidance on this subject (and others) stated that it would

consider waivers that included a partial expansion, but only if funded “subject to the regular federal

matching rate.” C

TR. FOR MEDICARE & MEDICAID SERVS., FREQUENTLY ASKED QUESTIONS ON

—and at work

255. Ass’n for Cmty. Afﬁliated Plans v. U.S. Dep’t of Treasury, 392 F. Supp. 3d 22 (D.D.C. 2019)

(challenging the Short-Term Plans rule), appeal ﬁled, No. 19-5212 (D.C. Cir. July 30, 2019); New York

v. Dep’t of Labor, 363 F. Supp. 3d 109 (D.D.C. 2019) (challenging the Association Health Plans Rule),

appeal ﬁled, No. 19-5125 (D.C. Cir. Apr. 30, 2019).

256. See 42 U.S.C. 1396a(a)(10)(A)(i)(VIII) (2012).

257. Huberfeld, supra note 49, at 69, 86.

258. Gluck & Huberfeld, supra note 15, at 1734.

259. Id.

260. 42 U.S.C. § 1315(a).

261.

262.

1510 THE GEORGETOWN LAW JOURNAL [Vol. 108:1471

EXCHANGES, MARKET REFORMS AND MEDICAID 11 (2012), https://www.medicaid.gov/federal-policy-

guidance/downloads/FAQ-12-10-2012-Exchanges.pdf [https://perma.cc/TT3U-PPDC].

requirements, refusing requests from states seeking to add a requirement that

non-disabled, non-elderly adult Medicaid recipients work.

263

See, e.g., Letter from Vikki Wachino, Dir., Ctr. for Medicare & Medicaid Servs., to Jeffrey A.

Myers, Comm’r, N.H. Dep’t of Health & Human Servs. (Nov. 1 , 2016), https://www.medicaid.gov/

Medicaid-CHIP-Program-Information/By-Topics/Waivers/1115/downloads/nh/health-protection-program/

nh-health-protection-program-premium-assistance-cms-response-110116.pdf [https://perma.cc/6SMY-

BFR8] (denying New Hampshire’s request to add a work requirement, which “could undermine access,

efﬁciency, and quality of care provided to Medicaid beneﬁciaries and [does] not support the objectives

of the Medicaid program”).

The Trump Administration walked into this atmosphere of negotiations and

concession-making and went further. Although it has continued to discourage

requests for partial expansion,

264

See, e.g., Letter from Seema Verma,

Adm’r, Ctr. for Medicare & Medicaid Servs., to Gary R.

Herbert, Governor of Utah (Aug. 16, 2019), https://www.medicaid.gov/Medicaid-CHIP-Program-

Information/By-Topics/Waivers/1115/downloads/ut/per-capita-cap/ut-per-capita-cap-correspondence-

ltr-20190816.pdf [https://perma.cc/7A65-7S7P] (stating that CMS would continue its policy of only

granting the enhanced match under the ACA to states that fully expand their Medicaid programs).

it reversed the longstanding position of the

Center for Medicare and Medicaid Services (CMS) that work requirements are

impermissible under the Medicaid program.

265

See Letter from Brian Neale, Dir., CMS, to

State Medicaid Directors (Jan. 11, 2018), https://

www.medicaid.gov/federal-policy-guidance/downloads/smd18002.pdf [https://perma.cc/SQ9W-

4VDR] (issuing new guidance encouraging states to submit waiver requests that would condition

Medicaid eligibility for able-bodied adults on completing work or work-related activities). Notably, the

guidance followed a year of failed attempts in Congress to repeal and replace the Affordable Care Act

that would have created a statutory state option to add work requirements to Medicaid. See, e.g.,

American Health Care Act of 2017, H.R. 1628, 115th Cong.

Just one day after issuing the new guidance, CMS approved Kentucky’s sec-

tion

1115 waiver, which included a work requirement—the ﬁrst approval of its

kind.

266

See Letter from Demetrios L. Kouzoukas, CMS Principal

Deputy Adm’r, to Stephen P. Miller,

Comm’r, Kentucky Cabinet for Health and Family Services (Jan. 12, 2018), https://khn.org/wp-content/

uploads/sites/2/2018/01/kentucky-1115-memo-and-approval-ltr.pdf [https://perma.cc/K6EX-J3CG]

(approving Kentucky’s section 1115 waiver that included a work requirement.)

Individual beneﬁciaries of Kentucky’s Medicaid expansion quickly

sued.

267

In June 2018, a federal court in Washington, D.C. found that the approval

of the waiver was arbitrary and capricious because the agency failed to

adequately consider whether the waiver would actually help furnish medical

as-

sistance,

Medicaid’s core statutory objective.

268

The agency conducted a new notice and comment period and re-approved

Kentucky’s waiver.

269

See Letter from Paul Mango, Chief Principal Deputy

Adm’r and Chief of Staff, CMS, to Carol

H. Steckel, Comm’r, Ky. Dep’t for Medicaid Servs., Cabinet for Health and Family Servs. (Nov. 20,

2018), https://www.medicaid.gov/Medicaid-CHIP-Program-Information/By-Topics/Waivers/1115/

downloads/ky/ky-health-ca.pdf [https://perma.cc/CVD4-4FSW].

The plaintiffs successfully challenged the re-approval,

263.

264.

265.

266.

267. See Class Action Complaint for Declaratory and Injunctive Relief, Stewart v. Azar, 308 F. Supp.

3d 239 (D.D.C. 2018), 2018 WL 525491.

268. Stewart, 313 F. Supp. 3d 237, appeal after remand, 366 F. Supp. 3d 125, 156 (D.D.C. 2019),

and appeal ﬁled, No. 19-5095 (D.C. Cir. 2019). In particular, CMS failed to consider the impact on

coverage despite Kentucky’s estimate in its waiver application that 95,000 Kentuckians would lose

Medicaid coverage due to the change in policy. Id. at 265.

269.

2020] THE AFFORDABLE CARE ACT’S LITIGATION DECADE 1511

with the judge relying on NFIB, of all cases, to hold that providing health cover-

age to the expansion population is just as much a Medicaid objective as is provid-

ing health coverage to the traditional Medicaid population.

270

On the same day, the same judge also vacated CMS’s approval of Arkansas’s

section 1115 waiver, which similarly included work requirements.

271

Unlike

Kentucky’s work requirement, which had not yet been implemented before

vaca-

tur,

Arkansas’s had gone into effect beginning in June 2018.

272

By the end of

2018, more than 16,000 Arkansas residents had lost their Medicaid coverage.

273

The same judge vacated the approval of New Hampshire’s work requirement in

July 2019.

274

A lawsuit was ﬁled challenging Indiana’s work requirement in

September 2019, and the requirement has been suspended while the dispute is

ongoing.

275

Rose v. Azar, No. 1:19-cv-02848 (D.D.C. ﬁled Sept. 23, 2019). Pending resolution of federal

lawsuit, FSSA will temporarily suspend Gateway to Work reporting requirements. Press Release, Ind.

Family & Soc. Servs. Admin., Pending Resolution of Federal lawsuit, FSSA Will Temporarily

Suspend Gateway to Work Reporting Requirements (Oct. 31, 2019) https://www.in.gov/fssa/ﬁles/

Gateway_to_Work_suspension_announcement.pdf [https://perma.cc/G53N-U7BR].

In February 2020, the D.C. Circuit issued a unanimous opinion, written by a

noted conservative judge David B. Sentelle, afﬁrming the district court’s decision

in Gresham, the Arkansas case.

276

The court of appeals agreed that it “is indispu-

tably correct that the principal objective of Medicaid is providing health care cov-

erage” and that the Secretary impermissibly disregarded this purpose in his

decision to approve the waiver.

277

The same district court vacated the approval of

Michigan’s work requirement shortly thereafter.

278

As of this Article, CMS has

approved work-requirement waivers in ten states and another ten states have

work-requirement waivers pending at CMS.

279

Maine withdrew its waiver following the election of a Democrat as governor in 2018. Letter

from Janet T. Mills, Governor of Me., to Seema Verma, Adm’r, CMS (Jan. 22, 2019), https://www.

medicaid.gov/Medicaid-CHIP-Program-Information/By-Topics/Waivers/1115/downloads/me/mainecare/

me-mainecare-approval-reponse-ltr-01222019.pdf [https://perma.cc/WHX7-MMHL]. On December 12,

2019, CMS approved South Carolina’s work-requirement waiver—the ﬁrst approval of its kind for a state

that did not expand Medicaid under the Affordable Care Act. But South Carolina’s requirement has not

yet been implemented at the time of this Article. Letter from Seema Verma, Adm’r, CMS, to Joshua

Baker, Dir., S.C. Dep’t of Health & Human Servs. (Dec. 12, 2019) [hereinafter Letter from Seema Verma

to Joshua Baker], https://www.medicaid.gov/Medicaid-CHIP-Program-Information/By-Topics/Waivers/

1115/downloads/sc/sc-healthy-connections-works-ca.pdf [https://perma.cc/RC6F-733C].

However, as of April 2020, no

270. Stewart, 366 F. Supp. 3d at 145, 146–47 (ﬁnding the approval arbitrary and capricious and

contrary to the Medicaid Act, and once more vacating the approval and remanding to the agency).

271. Gresham v. Azar, 363 F. Supp. 3d 165, 185 (D.D.C. 2019), aff’d, 950 F.3d 93 (D.C. Cir. 2020).

272. Medicaid beneﬁciaries between the ages of nineteen and forty-nine had to complete eighty

hours of work or approved community engagement activities per month to remain eligible.

273. Gresham v. Azar, 363 F. Supp. 3d at 172.

274. See Philbrick v. Azar, 397 F. Supp. 3d 11, 16 (D.D.C. 2019), appeal ﬁled, 19-5295 (D.C. Cir.

2019).

275.

276. Gresham v. Azar, 950 F.3d 93 (D.C. Cir. 2020). Kentucky had reversed its decision to

implement a work requirement following the election of Democratic Governor Andy Beshear in

November 2019, thus mooting out the Stewart case.

277. Id. at 99, 104.

278. Young v. Azar, No. 1:19-cv-03526 (D.D.C. Mar. 4, 2020).

279.

1512 THE GEORGETOWN LAW JOURNAL [Vol. 108:1471

state had a work requirement currently in force with all having been vacated by a

court, suspended by the state, or not yet implemented.

280

Utah, the only state with a remaining active work requirement as of April 2020, suspended its

work requirement due to the COVID-19 pandemic. Harris Meyer, Utah Suspends Medicaid Work

Requirement Due to COVID-19, M

OD. HEALTHCARE (Apr. 2, 2020, 2:05 PM), https://www.

modernhealthcare.com/medicaid/utah-suspends-medicaid-work-requirement-due-covid-19.

In March 2020 in response to the COVID-19 pandemic, Congress passed the Families First

Coronavirus Response Act, which included a maintenance-of-effort requirement that forbids states from

making Medicaid eligibility more stringent than it was in January 2020 if they accepted the Act’s

enhanced federal Medicaid funding. Pub. L. No. 116-127, § 6008(b), 134 Stat. 178, 208–09 (2020).

Another percolating issue may be Medicaid block grants, which would convert

Medicaid’s funding structure into a lump-sum payment to the states, allowing

participating states to skirt certain federal Medicaid requirements. In January

2020, CMS issued guidance inviting states to apply for section 1115 waivers

using a block-grant or per-capita-cap funding model aimed at the expansion

pop-

ulation.

281

Letter from Calder Lynch, Dir., Ctrs. ror Medicaid & Medicare Servs., to State Medicaid

Director (Jan. 30, 2020), https://www.medicaid.gov/sites/default/ﬁles/Federal-Policy-Guidance/

Downloads/smd20001.pdf [https://perma.cc/G4FF-VBQK].

Because Medicaid’s funding formula is not waivable under section

1115, lawsuits would likely immediately follow any federal approval of this type

of waiver.

2. Efforts to Undercut Access for Immigrants

The Trump Administration has also sought to limit Medicaid eligibility by dis-

couraging immigrants from accessing health services. In August 2019, the

Department of Homeland Security ﬁnalized the “public charge” rule, which rede-

ﬁnes the term “public charge” in the Immigration and Nationality Act to make

the receipt of certain federal beneﬁts, including Medicaid, grounds for denying

an immigrant’s application for admission or a green card.

282

Twenty-two states

and local governments, in addition to several advocacy groups, challenged the

rule in at least nine separate lawsuits.

283

Wendy E. Parmet, Five Victories for Public Health: Courts Enjoin the

Public Charge Rule,

EALTH AFF. BLOG (Oct. 18, 2019), https://www.healthaffairs.org/do/10.1377/hblog20191018.747447/

full/ [https://perma.cc/V3X4-5TFM].

The plaintiffs variously argued that the

rule was arbitrary and capricious in violation of the APA, discriminated against

those with disabilities

284

in violation of the Rehabilitation Act of 1973, and vio-

lated

the Equal Protection Clause.

285

Before the rule went into effect, ﬁve district

280.

281.

282. See Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41,292 (Aug. 14, 2019) (to be

codiﬁed in scattered sections of 8 C.F.R.).

283.

284. The Rule’s new criteria are so broad that they will exclude some persons with signiﬁcant

disabilities solely on that basis. In addition to the already-existing health criteria, the Rule now requires

immigration ofﬁcials to consider whether the applicant “has any physical or mental condition . . .

signiﬁcant enough to interfere with the person’s ability to care for himself or herself.” Inadmissibility on

Public Charge Grounds, 84 Fed. Reg. at 41,407 (footnote omitted).

285. See, e.g., Complaint ¶¶ 7, 23, 281–305, 338–43, California v. Dep’t of Homeland Sec., No. 19-

cv-04975 (N.D. Cal. Aug. 16, 2019); Complaint ¶¶ 9, 297, New York v. Dep’t of Homeland Sec., 408

F. Supp. 3d 334 (S.D.N.Y. 2019).

2020] THE AFFORDABLE CARE ACT’S LITIGATION DECADE 1513

courts issued preliminary injunctions, three of which applied nationwide.

286

The rule also raises concerns about chilling immigrants from applying for and

receiving healthcare beneﬁts for which they and their children are eligible.

287

immigrant and mixed-status families disenroll from healthcare programs like

Medicaid due to the new rule, this could undermine much of the progress

made since the ACA in decreasing the rate of uninsured, especially for

children.

288

The cases proceeded to appeal and on January 27, 2020, the Supreme Court

stayed the Southern District of New York’s nationwide injunction against the

public charge rule and thus, allowed the rule to go into effect while the litigation

proceeds.

289

Due to the COVID-19 pandemic, in March 2020 the Department of

Homeland Security announced it would suspend enforcement of the healthcare

aspects of the rule for an undetermined period of time.

290

Public Charge, U.S. C

ITIZENSHIP & IMMIGRATION SERVS., https://www.uscis.gov/greencard/

public-charge [https://perma.cc/9E7U-FXDP] (last updated Mar. 27, 2020).

Another recent attempt to use the healthcare system to restrict legal immigra-

tion

was the “Presidential Proclamation on the Suspension of Entry of

Immigrants Who Will Financially Burden the United States Healthcare System,”

issued on October 4, 2019.

291

President Donald J. Trump, Presidential Proclamation on the Suspension of Entry of

Immigrants Who Will Financially Burden the United States Healthcare System, W

HITE HOUSE (Oct 4.

2019), https://www.whitehouse.gov/presidential-actions/presidential-proclamation-suspension-entry-

immigrants-will-ﬁnancially-burden-united-states-healthcare-system [https://perma.cc/PTP9-NXMN].

The Proclamation moves beyond the Medicaid pop-

ulation

targeted by the public charge rule to also bar immigrants receiving ACA

insurance subsidies on the exchanges from entering the country.

292

At the same

time, the Proclamation seeks to require legal immigrants to obtain health

286. See, e.g., Casa de Md., Inc. v. Trump, 8:19-cv-02715-PWG, slip op. at 1–2 (D. Md. Oct. 14,

2019) (granting a nationwide preliminary injunction); Cook County v. McAleenan, 19-cv-06334, slip

op. at 1–2 (N.D. Ill. Oct. 14, 2019) (granting a preliminary injunction); Washington v. Dep’t of

Homeland Sec., No. 4:19-cv-05210-RMP, slip op. at 2 (E.D. Wash. Oct. 11, 2019) (granting a

nationwide preliminary injunction); City & County of San Francisco v. U.S. Citizenship & Immigration

Servs., No. 19-cv-04717-PJH, slip op. at 1–2 (N.D. Cal. Oct. 11, 2019); New York v. Dep’t of

Homeland Sec., No: 1:19-cv-07777-GBD, slip op. at 3 (S.D.N.Y. Oct. 11, 2019) (granting a nationwide

preliminary injunction).

The plaintiffs argued that the Administration’s revised deﬁnition of the term “public charge” was

inconsistent with the term’s longstanding deﬁnition: an individual who is likely to become primarily and

permanently dependent on the government for subsistence rather than someone who is temporarily in

need of aid. The plaintiffs also argued that DHS failed to adequately consider the costs and beneﬁts of

the revised deﬁnition also rendering the rule arbitrary and capricious under the APA.

287. See City & County of San Francisco v. U.S. Citizenship & Immigration Servs., No. 4:19-cv-

04975-PJH, slip op. at 4 n.1 (“When plaintiffs refer to harms caused by those who will disenroll from

public beneﬁts in addition to those who will forego enrollment. This order considers the two categories

together, and refers to them interchangeably.”).

288. See Washington v. Dep’t of Homeland Sec., No. 4:19-cv-05210-RMP, slip op. at 17.

289. Dep’t of Homeland Security v. New York, 140 S. Ct. 599 (2020) (mem.) (order on application

for a stay). The Supreme Court also stayed the Illinois-speciﬁc injunction. Wolf v. Cook County, 140 S.

Ct. 681 (2020) (mem.) (order on application for a stay).

290.

291.

292. See id. Speciﬁcally, the Proclamation bars those who were going to rely on “health plan[s] offered in

the individual market within a State” from entering unless those plans were “unsubsidized.” Id.

1514 THE GEORGETOWN LAW JOURNAL [Vol. 108:1471

insurance within thirty days of entering the country.

293

A federal district court in

Oregon stopped the rule from going into effect by granting a nationwide TRO

294

and a subsequent nationwide injunction.

295

In its order, the court noted that “[t]he

ACA is . . . explicit in its support of legal immigrants, afﬁrmatively allowing

newly arrived legal immigrants to use premium tax credits to buy insurance

offered on [exchanges].”

296

The government appealed.

297

These efforts, like the Medicaid work-requirement cases, have an undercurrent

that is at odds with the ACA’s core principle of universal coverage and its norm

of solidarity. All of these actions look to reinstate an individual “merit” model

and the concept of the “deserving poor”—the notion that only some categories of

individuals, for example, citizens or those who work, should receive government

beneﬁts.

3. Efforts to Disrupt the Risk Pool

NFIB was, at bottom, a case about the insurance risk pool. The risk pool con-

cept is central to the ACA because it helps to ﬁnance the signiﬁcant new require-

ments that the ACA imposes on insurers. To make its new insurance rules

ﬁnancially viable, the ACA expands the insurance market—bringing healthy

individuals into the insurance pool to both spread risk and bring additional reve-

nue to insurers who now bear more risk than before.

The insurance mandate at issue in NFIB was about this principle—whether

unwilling individuals could be prompted to be part of a region-wide risk pool, on

pain of paying a tax penalty if they refused to maintain minimum essential

cover-

age.

Other early efforts to police the boundaries of the primary risk pool include

the Obama Administration’s unsuccessful attempts to discourage people from

signing up for ﬁxed indemnity plans.

298

On the other hand, the Obama

Administration did undermine the risk pool somewhat by “grandmothering”

exemptions for some plans that had been in effect at the time of the ACA’s

pas-

sage

299

(the result of President Obama’s infamous promise: “[i]f you like your

293. Id.

294. See Doe #1 v. Trump, 414 F. Supp. 3d 1307 (D. Or. 2019).

295. See Doe #1 v. Trump, 418 F. Supp. 3d 573 (D. Or. 2019).

296. Id. at 581–82.

297. See Doe #1 v. Trump, 944 F.3d 1222 (9th Cir. 2019) (denying stay pending appeal).

298. See, e.g., Cent. United Life, Inc. v. Burwell, 128 F. Supp. 3d 321, 323 (D.D.C. 2015) (enjoining

enforcement of an HHS rule that barred ﬁxed indemnity plan sellers from “selling . . . to individual

consumers unless those consumers certify[ied] that they ha[d] ‘minimum essential coverage’ under the

Affordable Care Act”), aff’d sub nom. Cent. United Life Ins. Co. v. Burwell, 827 F.3d 70 (D.C. Cir.

2016).

299. These Obama Administration exemptions are called transitional plans, and at least one court has

referred to them as the “Administrative Fix.” See West Virginia v. U.S. Dep’t of Health & Human

Servs., 145 F. Supp. 3d 94, 96 (D.D.C. 2015), aff’d sub nom. West Virginia ex rel. Morrissey v. U.S.

Dep’t of Health & Human Servs., 827 F.3d 81 (D.C. Cir. 2016). Courts dismissed the two principal

challenges for lack of standing. See West Virginia v. U.S. Dep’t of Health & Human Servs., 145 F. Supp.

3d at 105, 110–11; Am. Freedom Law Ctr. v. Obama, 106 F. Supp. 3d 104, 112 (D.D.C. 2015), aff’d,

821 F.3d 44 (D.C. Cir. 2016).

2020] THE AFFORDABLE CARE ACT’S LITIGATION DECADE 1515

health care plan, you’ll be able to keep [it].”).

300

Obama: ‘If You Like Your Health Care Plan, You’ll Be Able to Keep Your Health Care Plan,’

OLITIFACT, https://www.politifact.com/obama-like-health-care-keep/ [https://perma.cc/9K6J-HUX5]

(last visited Mar. 26, 2020).

The Trump Administration has imposed new policies to further split and

undermine the pool. First, the Administration issued a rule that would expand the

category of eligible employers who are authorized to sponsor Association Health

Plans (AHPs), which under the ERISA statute are exempt from important ACA

consumer protections including the essential-health-beneﬁts requirement.

301

Under prior rules, associations of employers had to consist of bona ﬁde employers

with a commonality of interest beyond simply offering insurance for employees,

and participating employers had to actually be employers, not simply one-person

businesses. Under the new rule, an expanded universe of loosely connected

indi-

viduals

could form AHPs and by doing so, avoid ACA protections. Eleven states

and the District of Columbia sued over the new rules and won in federal district

court in 2019.

302

The court found the rule to be an intentional “end-run around

the ACA” and also a violation of ERISA.

303

The case is currently on appeal,

where a major issue will be how much discretion a federal agency has to set—

and change—policy in this area.

A second similar attempt involved “short-term, limited duration” plans.

304

Under the ACA, everyone is required to obtain minimum essential coverage,

which includes individual health insurance coverage. However, the ACA carries

forward the deﬁnition of “individual health insurance coverage” from the 1996

HIPAA law,

305

which deﬁnition did not include short-term, limited duration in-

surance.

306

The Obama Administration interpreted short-term limited duration in-

surance

to mean insurance coverage that would be in effect for no more than

three months,

307

relying in part on an exception in the individual mandate statute

for “short coverage gaps.”

308

In 2018, the Trump Administration changed course

and adopted rules that would allow short-term, limited duration plans that do not

have to comply with many ACA consumer protections like essential health

300.

301. Deﬁnition of “Employer” Under Section 3(5) of ERISA—Association Health Plans, 83 Fed.

Reg. 28,912 (June 21, 2018) (to be codiﬁed at 29 C.F.R. pt. 2510).

302. New York v. U.S. Dep’t of Labor, 363 F. Supp. 3d 109, 116–17, 141 (D.D.C. 2019), appeal

ﬁled, No. 19-5125 (D.C. Cir. Apr. 30, 2019). It reasoned the rule would “allow[] virtually any

association of disparate employers connected by geographic proximity to qualify” and that an

association could “form solely for the purpose of creating an AHP.” Id. at 117.

303. Id.

304. See Ass’n for Cmty. Afﬁliated Plans v. U.S. Dep’t of Treasury, 392 F. Supp. 3d 22, 25 (D.D.C.

2019), appeal ﬁled, No. 19-5212 (D.C. Cir. July 30, 2019).

305. See 42 U.S.C. § 300gg-91(b)(5) (2012) (“The term ‘individual health insurance coverage’

means health insurance coverage offered to individuals in the individual market, but does not include

short-term limited duration insurance.”).

306. See 26 U.S.C. § 5000A(e)(4) (2017).

307. See Excepted Beneﬁts; Lifetime and Annual Limits; and Short-Term, Limited-Duration

Insurance, 81 Fed. Reg. 75,316, 75,317–18 (Oct. 31, 2016) (to be codiﬁed at 45 C.F.R. pts. 144, 146,

147, and 148).

308. See 26 U.S.C. § 5000A(e)(4).

1516 THE GEORGETOWN LAW JOURNAL [Vol. 108:1471

beneﬁts to continue for 364 days and to be renewable or extendable for a total of

three years.

309

Organizations that included a nonproﬁt insurer, a health-professional organiza-

tion,

and consumer advocacy groups sued to challenge the rule. They lost in the

district court, which held that the Trump Administration’s interpretation deserved

deference under the Chevron rule—the important Supreme Court precedent

requiring deference to reasonable agency interpretations of ambiguous statutes.

310

The appeal was heard by the D.C. Circuit in March 2020.

In addition to bringing challenges to these rules under the APA and as in

viola-

tion

of the ACA, cities brought a constitutional claim against the President.

Speciﬁcally, they argued that President Trump’s expressed, intentional Executive

sabotage of the ACA violates the Take Care Clause of the Constitution, which

directs the President to “take Care that the Laws be faithfully executed.”

311

Although the Take Care Clause is rarely invoked because the President enjoys

enormous implementation and enforcement discretion, the cities argued that the

ACA story offers the extreme case: that President Trump has made no pretense of

engaging in good faith implementation and so if there is any action that could

ever violate the Take Care Clause, the kind of intentional sabotaging in which the

President is engaged with respect to the ACA satisﬁes that standard.

312

In April

2020, the district court refused to let the Take Care claim go forward but did not

dismiss the rest of the case.

313

Finally, the Trump Administration has considered using waivers to undercut

private insurance. In fall 2018, it published guidance stating that as long as one of

several plans an insurer offers includes the full ACA scope of coverage—for

example, essential health beneﬁts—the Administration could grant a section

1332 waiver under the ACA (the ACA waiver section with parallels to section

1115 waivers under Medicaid

314

) for plans to be offered that provide less-than-

full coverage. If such waivers are granted, more court challenges may follow.

309. See Short-Term, Limited-Duration Insurance, 83 Fed. Reg. 38,212, 38,214–15 (Aug. 3, 2018)

(to be codiﬁed at 45 C.F.R. pts. 144, 146, 148). The rule would also make these plans stackable, meaning

they could last even beyond three years.

310. See Ass’n for Cmty. Afﬁliated Plans, 392 F. Supp. 3d at 41–42, 44–45.

311. See U.S. C

ONST. art. II, § 3; Complaint for Declaratory and Injunctive Relief, City of Columbus

v. Trump, supra note 250, ¶¶ 1–5.

312. See U.S. C

ONST. art. II, § 3; Plaintiffs’ Opposition to Defendants’ Motion to Dismiss Plaintiffs’

Amended Complaint at 49–68, City of Columbus v. Trump, No. 18-cv-2364 (D. Md. May 31, 2019),

2019 WL 2526482.

313. City of Columbus v. Trump, No. DKC-18-2364, slip op. at 58–67 (D. Md. Apr. 10, 2020).

314. Section 1115 waivers and 1332 waivers are not precisely parallel. Among other things, section

1332 waivers neither have to satisfy a test for promoting the objectives of the Act, 42 U.S.C. § 1315(a)

(2012), nor do they need to be phrased in terms of experimental protocols. Id. However, they do have to

satisfy four federal guardrails, 42 U.S.C. § 18052(b)(1)(A)–(D), the ﬁrst of which requires that coverage

be at least as comprehensive as coverage under the ACA absent the 1332 state innovation waiver, 42

U.S.C. § 18052(b)(1)(A).

2020] THE AFFORDABLE CARE ACT’S LITIGATION DECADE 1517

IV. ALMOST 2,000 OTHER FEDERAL AND STATE CHALLENGES

Apart from the cases we have discussed, a staggering 1,700-plus cases involv-

ing the ACA have been heard by the federal courts, more than 300 of which have

come before the federal courts of appeals. These cases not only challenge the

law, but they also invoke rights under it and contest administrative enforcement

of it. They also include individual challenges and challenges to state implementa-

tion decisions. Another several hundred have been brought in the state courts, the

most signiﬁcant of which involve intragovernmental disputes within states over

how or whether to implement the ACA. Although we cannot possibly digest all

of those cases here, we offer some broad strokes to help paint the picture.

A. ENFORCING NEW RIGHTS UNDER THE ACA

One set of cases aims to enforce new beneﬁts and obligations provided by the

ACA. For example, several cases in the courts of appeals concern the changes the

ACA made to survivorship beneﬁts for coal miners’ widows under the Black

Lung Beneﬁts Act.

315

Another group of cases concerns the ACA’s amendments

to Medicare’s payments to teaching hospitals for residents.

316

Other cases con-

cern the ACA’s amendments to the False Claims Act and other issues surround-

ing healthcare fraud.

317

The Federal Trade Commission recently brought a case to

enforce the ACA against a healthcare indemnity provider for engaging in

decep-

tive

trade practices in which the provider sold indemnity plans under the false

pretense that the plans offered comprehensive coverage and were in compliance

with the ACA.

318

B. MORE CHALLENGES TO ADMINISTRATIVE ACTION IMPLEMENTING THE ACA

There are more cases challenging the Trump Administration’s regulations, too.

One set of cases challenges the Administration’s new Title X rule—the so-called

“gag rule”—which imposes additional restrictions on providers in the Title X

315. See, e.g., W. Va. CWP Fund v. Bender, 782 F.3d 129 (4th Cir. 2015); Peabody Coal Co. v. Dir.,

Ofﬁce of Workers’ Comp. Programs, 577 F. App’x 469 (6th Cir. 2014); Jim Walter Res., Inc. v. Dir.,

Ofﬁce of Workers’ Comp. Programs, 766 F.3d 1333 (11th Cir. 2014); E. Associated Coal Co. v.

Dir., Ofﬁce of Workers’ Comp. Programs, 578 F. App’x 165 (4th Cir. 2014); Westmoreland Coal Co. v.

Dir., Ofﬁce of Workers’ Comp. Programs, 540 F. App’x 152 (4th Cir. 2013); Mountaineer Coal Dev.

Co. v. Dingess, 538 F. App’x 367 (4th Cir. 2013); Marmon Coal Co. v. Dir., Ofﬁce of Workers’ Comp.

Programs, 726 F.3d 387 (3d Cir. 2013); U.S. Steel Mining Co., LLC v. Dir., OWCP, 719 F.3d 1275

(11th Cir. 2013); Harlan-Cumberland Coal Co. v. Farmer, 518 F. App’x 445 (6th Cir. 2013); Vision

Processing, LLC v. Groves, 705 F.3d 551 (6th Cir. 2013); Helen Mining Co. v. Fairman, 490 F. App’x

459 (3d Cir. 2012); B & G Constr. Co. v. Dir., Ofﬁce of Workers’ Comp. Programs, 662 F.3d 233 (3d

Cir. 2011); Morrison v. Tenn. Consol. Coal Co., 644 F.3d 473 (6th Cir. 2011).

316. See Covenant Med. Ctr., Inc. v. Burwell, 603 F. App’x 360 (6th Cir. 2015); Rush Univ. Med.

Ctr. v. Burwell, 763 F.3d 754 (7th Cir. 2014); Henry Ford Health Sys. v. Dep’t of Health & Human

Servs., 654 F.3d 660 (6th Cir. 2011).

317. See, e.g., United States v. Dehaan, 896 F.3d 798, 804 (7th Cir. 2018); Cooper v. Pottstown

Hosp. Co. LLC, 651 F. App’x 114, 115 (3d Cir. 2016).

318. FTC v. Simple Health Plans LLC, 379 F. Supp. 3d 1346, 1352, 1354 (S.D. Fla. 2019), appeal

ﬁled, FTC v. Dorfman, No. 19-11932 (11th Cir. May 15, 2019).

1518 THE GEORGETOWN LAW JOURNAL [Vol. 108:1471

family-planning program.

319

The challengers rely in part on section 1554 of the

ACA, the “noninterference mandate,” which prevents HHS from issuing any

rule that interferes with the patient–provider relationship.

320

The ﬁrst Bush

Administration promulgated a similar gag rule, which the Court upheld in 1991

in Rust v. Sullivan.

321

The Clinton Administration immediately withdrew the

rule.

322

A question now raised is whether the ACA—with its prohibitions on cre-

ating unreasonable barriers to healthcare access and on interfering with patient–

provider communications about a full range of treatment options in section

1554—has superseded or undermined Rust, and thus prevents the rule from being

reimposed. Several district courts have taken this position,

323

but the Fourth

Circuit (a panel) and the Ninth Circuit (a panel and en banc) disagreed.

324

As of

April 2020, an injunction was in place for the state of Maryland, but the rule was

in effect everywhere else.

325

In another challenge to the Trump Administration’s healthcare regulations,

hospitals have sued HHS over its new rule requiring hospitals to disclose publicly

the prices they pay to different payers.

326

The hospitals argue that the Final

Rule

327

falls outside of the standard charges they are required to disclose

under section 2718(e) of the ACA and thus is not within the agency’s statutory

authority.

328

States have also challenged the Trump Administration’s rule requir-

ing

insurance plans that include abortion coverage to send separate bills and

319. See California by and through Becerra v. Azar, 927 F.3d 1068 (9th Cir. 2019) (granting a

motion for a stay pending appeal after district courts in California, Oregon, and Washington granted

preliminary injunctions to prevent the Trump Administration’s Title X rule), reh’g en banc granted, 927

F.3d 1045 (9th Cir. 2019) (mem.), vacated, 950 F.3d 1067 (9th Cir. 2020); Mayor of Baltimore v. Azar,

392 F. Supp. 3d 602 (D. Md. 2019).

320. See California by and through Becerra, 927 F.3d at 1075–76; Mayor of Baltimore, 392 F. Supp.

3d at 615.

321. 500 U.S. 173, 203 (1991).

322. The Title X “Gag Rule,” 58 Fed. Reg. 7455 (Feb. 5, 1993) (President Clinton directing his

Secretary of Health and Human Services to “suspend the Gag Rule pending the promulgation of new

regulations in accordance” with the APA).

323. Mayor of Baltimore v. Azar, 392 F. Supp. 3d 602, 617 (D. Md. 2019); Oregon v. Azar, 389 F.

Supp. 3d 898, 920 (D. Or. 2019); California by and through Becerra, 385 F. Supp. 3d at 1022;

Washington v. Azar, 376 F. Supp. 3d 1119, 1132 (E.D. Wash. 2019).

324. California ex rel. Becerra v. Azar, 928 F.3d 1153, 1155 (9th Cir. 2019) (en banc) (denying

emergency motions for a stay of the panel decision allowing the rule to go into effect); Mayor of

Baltimore v. Azar, 778 F. App’x 212 (4th Cir. 2019) (mem.) (granting stay).

325. Mayor of Baltimore v. Azar, No. CV RDB-19-1103, 2020 WL 1043728 (D. Md. Mar. 4, 2020)

(enjoining the rule in the state of Maryland on the grounds that the rule was arbitrary and capricious in

violation of the APA). The Fourth Circuit en banc denied the government’s motion to stay the district

court’s permanent injunction and granted the plaintiffs’ request for an initial hearing en banc. Mayor of

Baltimore v. Azar, No. 19-1614, 2020 WL 1514779 (4th Cir. Mar. 27, 2020).

326. Complaint ¶¶ 3–4, Am. Hosp. Ass’n v. Azar, No. 1:19-cv-3619, 2019 WL 6534522 (D.D.C.

Dec. 4, 2019).

327. Medicare and Medicaid Programs: CY 2020 Hospital Outpatient PPS Policy Changes and

Payment Rates and Ambulatory Surgical Center Payment System Policy Changes and Payment Rates.

Price Transparency Requirements for Hospitals To Make Standard Charges Public, 84 Fed. Reg. 65,524

(Nov. 27, 2019) (to be codiﬁed at 45 C.F.R. subchap. E).

328. Complaint, Am. Hosp. Ass’n v. Azar, supra note 326, ¶¶ 5, 40–51.

2020] THE AFFORDABLE CARE ACT’S LITIGATION DECADE 1519

collect separate payments for the portion of a premium attributable to that cover-

age.

329

The ﬁrst district court decision in these cases, in March 2020, invalidated

the rule as “hav[ing]e little to do with providing efﬁcient and effective medical

coverage and everything to do with trying to prevent Washington’s State recogni-

tion of a women’s right to assess safe and legal abortions.”

330

Over the years, health insurance industry stakeholders have ﬁled several law-

suits challenging other aspects of HHS’s implementing regulations and rules.

The pharmaceutical industry’s trade group challenged HHS’s interpretation

of the ACA’s changes to two important federal laws regarding prescription drugs,

the 340B program and the Orphan Drug Act focusing on circumstances in which

an orphan drug (a drug used to “treat rare diseases or conditions”) must be offered

at a discount price under the Public Health Service Act.

331

Insurers offering ﬁxed

indemnity policies successfully sued to challenge HHS’s regulation that limited

the sale of these policies to those who already had minimum essential coverage

under the ACA.

332

Insurers also unsuccessfully challenged the charge imposed on

them by the Exchange for the District of Columbia in order to fund the

exchange,

333

and providers unsuccessfully challenged the ACA’s changes to

Medicare billing.

334

Challenges to the Obama Administration’s grandmothering policies (“[i]f you

like your health care plan, you’ll be able to keep [it]”

335

) were unsuccessful.

336

Another case involved Obama Administration regulations on payments to out-of-

network emergency physicians; the parties settled after it was was remanded for

further consideration.

337

A challenge to the Medicare Independent Payment

Advisory Board (IPAB)—the commission charged with keeping Medicare

329. Patient Protection and Affordable Care Act; Exchange Program Integrity, 84 Fed. Reg. 71,674

(December 27, 2019) (to be codiﬁed at 45 C.F.R. pt. 155, 156). The states argue that the rule penalizes

states that choose to offer plans including coverage for abortion, has the potential to confuse consumers

and result in the termination of their coverage, and violates sections 1554, 1557, and 1303 of the ACA,

which represent a legislative compromise between federal restrictions on funding for abortion and

access to reproductive healthcare. Complaint ¶¶ 7–8, California v. U.S. Dep’t of Health & Human

Servs., No. 3:20-cv-00682-LB (N.D. Cal. Jan. 30, 2020).

330. Washington v. Azar, No. 4:20-cv-00047-SAB, slip op. at 11–12 (E.D. Wash. Apr. 10, 2020).

331. Pharm. Research & Mfrs. of Am. v. U.S. Dep’t of Health & Human Servs., 138 F. Supp. 3d 31,

32, 34 (D.D.C. 2015).

332. Cent. United Life Ins. Co. v. Burwell, 827 F.3d 70, 72–73 (D.C. Cir. 2016).

333. Am. Council of Life Insurers v. D.C. Health Beneﬁt Exch. Auth., 815 F.3d 17, 18–19 (D.C. Cir.

2016).

334. Ass’n of Am. Physicians & Surgeons, Inc. v. Sebelius, 901 F. Supp. 2d 19, 26–27 (D.D.C.

2012), aff’d sub nom. Ass’n of Am. Physicians & Surgeons v. Sebelius, 746 F.3d 468 (D.C. Cir. 2014).

This case also included constitutional challenges based on the Origination Clause and the Takings

Clause. Id. at 37–38.

335. See Obama: ‘If You Like Your Health Care Plan, You’ll Be Able to Keep Your Health Care

Plan,’ supra note 300.

336. See, e.g., West Virginia v. U.S. Dep’t of Health & Human Servs., 145 F. Supp. 3d 94 (D.D.C.

2015), aff’d sub nom. West Virginia ex rel. Morrissey v. U.S. Dep’t of Health & Human Servs., 827 F.3d

81 (D.C. Cir. 2016); Am. Freedom Law Ctr. v. Obama, 106 F. Supp. 3d 104 (D.D.C. 2015), aff’d, 821

F.3d 44 (D.C. Cir. 2016).

337. Am. Coll. of Emergency Physicians v. Price, 264 F. Supp. 3d 89, 90–91 (D.D.C. 2017).

1520 THE GEORGETOWN LAW JOURNAL [Vol. 108:1471

spending under speciﬁed growth levels—was dismissed as unripe

338

and

Congress eventually abolished the IPAB in the 2018 budget agreement.

339

Margot Sanger-Katz, Another of Obamacare’s Unloved Provisions Is Gone, N.Y. T

IMES (Feb. 9,

2018), https://www.nytimes.com/2018/02/09/upshot/obamacare-ipab-medicare-congress.html.

Senator Ron Johnson and members of his staff unsuccessfully challenged OPM’s

rule implementing the ACA provision that requires members of Congress and

their staff to obtain health insurance through the exchange.

340

Additional challenges brought by states include, among others, a challenge

to HHS’s certiﬁcation rule, which required states to pay the ACA’s health

in-

surance

provider fee.

341

Maine brought a lawsuit challenging the ACA’s

Medicaid maintenance-of-effort requirement, which required states to

main-

tain

their levels of Medicaid eligibility for children for a set period following

the ACA’s enactment.

342

Ohio challenged the application of the transitional

reinsurance program and the associated fees to health plans for state

employ-

ees.

343

Nonproﬁt-organization plaintiffs challenged Missouri’s state law

restricting navigators (outreach ofﬁcials who help match individuals to

insur-

ance

plans).

344

Finally, physicians opposed to Vermont’s law requiring them to

disseminate information regarding physician-assisted suicide sued, relying on

the ACA provision prohibiting state agencies from discriminating against those

who object to physician-assisted suicide.

345

C. INDIVIDUAL SUITS

Individual plaintiffs have ﬁled other lawsuits. One suit was a challenge to the

individual mandate’s religious exemption as violating the Establishment Clause,

as well as a challenge to the transitional-policy requirement as violating the

Equal Protection Clause.

346

A group of enrollees brought a lawsuit claiming that

their insurer violated the medical loss ratio (MLR) provision of the ACA—the

provision that requires insurers to spend at least 80 or 85%, depending on

the plan, of premium dollars on medical care and issue rebates to consumers if

the percentage spent on medical care falls below that threshold—by

miscalculat-

ing

the MLR.

347

Plaintiffs also have ﬁled cases challenging insurers’ lack of

adequate coverage for lactation services in violation of the ACA.

348

338. Coons v. Lew, 762 F.3d 891, 900–01 (9th Cir. 2014).

339.

340. Johnson v. U.S. Ofﬁce of Pers. Mgmt., 783 F.3d 655, 658 (7th Cir. 2015).

341. See Texas v. United States, 336 F. Supp. 3d 664, 667 (N.D. Tex. 2018).

342. See Mayhew v. Burwell, 772 F.3d 80, 82–83 (1st Cir. 2014).

343. Ohio v. United States, 154 F. Supp. 3d 621, 632 (S.D. Ohio 2016), aff’d, 849 F.3d 313 (6th Cir.

2017).

344. St. Louis Effort for AIDS v. Huff, 782 F.3d 1016, 1019–20 (8th Cir. 2015).

345. Vt. All. for Ethical Healthcare, Inc. v. Hoser, 274 F. Supp. 3d 227, 232 (D. Vt. 2017), appeal

dismissed sub nom. Vt. All. for Ethical Healthcare, Inc. v. van de Ven, No. 17-1481, 2017 WL 3429397

(2d Cir. May 22, 2017).

346. Cutler v. U.S. Dep’t of Health & Human Servs., 797 F.3d 1173, 1175 (D.C. Cir. 2015). The

plaintiff objected to the individual mandate for personal reasons rather than religious reasons. Id.

347. See Morris v. Cal. Physicians’ Serv., 918 F.3d 1011, 1012–13, 1017 (9th Cir. 2019).

348. See Briscoe v. Health Care Serv. Corp., 281 F. Supp. 3d 725, 728–29 (N.D. Ill. 2017); Condry v.

UnitedHealth Grp., Inc., No. 17-cv-00183-VC, 2017 WL 7420997, at *1–2 (N.D. Cal. Aug. 15, 2017);

2020] THE AFFORDABLE CARE ACT’S LITIGATION DECADE 1521

There also have been some additional cases involving the employer mandate.

With respect to where the employer mandate applies and how it works, a federal

district court in Wyoming held that it applies to tribal enterprises,

349

while a fed-

eral district court in New York held that employees whose hours were being arti-

ﬁcially held below the thirty-hours-per-week threshold could pursue claims

against their employer.

350

Marin v. Dave & Buster’s, Inc., 159 F. Supp. 3d 460, 461 (S.D.N.Y. 2016). The parties settled in

2019. See Perry Cooper, Dave & Buster’s $7.4M Health Coverage Class Deal Wins Final Nod,

LOOMBERG LAW (July 22, 2019, 12:37 PM), https://news.bloomberglaw.com/class-action/dave-

busters-7-4m-health-coverage-class-deal-wins-ﬁnal-nod?utm_source=rss&utm_medium=CLNW&utm_

campaign=0000016c-1a78-dd4e-a36c-5f78fa960001.

The Obama Administration had delayed immediate

imposition of the employer mandate, and that prompted legal challenges too. The

courts, however, found that the litigants lacked standing to challenge the delay

and so the issue was never heard on the merits.

351

D. CHALLENGES TO ASPECTS OF STATE IMPLEMENTATION OF THE ACA OR EFFORTS TO

REGULATE ALONGSIDE THE ACA

Other lawsuits involve the relationship between the ACA and the states. In

2015, a group of states sued—again before Judge O’Connor in Texas—to chal-

lenge the ACA’s Health Insurance Providers Fee, and an HHS rule requiring that

contributions by state Medicaid managed-care plans toward that fee be assessed

with reference to standards set by the Actuarial Standards Board, a private en-

tity.

352

The court agreed with the challengers on their claim that the rule violated

the nondelegation doctrine, impermissibly giving control of decisions as to who

would pay the ACA’s health insurance providers fee to this private

organiza-

tion.

353

The case is unusual because most nondelegation cases are about statutes

that do not adequately guide agency discretion; nondelegation cases about agency

regulations are rare. The appeal was pending at the time of this Article.

One important case that made it to the Supreme Court involved the potential

intersection of the ACA, ERISA, and state regulation. In trying to rationalize

healthcare at the state level, Vermont required all insurers and insurer-equiv-

alents to report payment information to an all-payer state database. In

Gobeille v. Liberty Mutual Insurance Co., the Court held that the ERISA stat-

ute, which governs employee beneﬁt plans and continues to do so despite the

ACA’s reforms to employer-sponsored insurance, preempted Vermont’s all-

payer database law for all insurers.

354

The Court expressly declined to

Ferrer v. CareFirst, Inc., 265 F. Supp. 3d 50, 51–52 (D.D.C. 2017), reconsideration denied, 278 F. Supp.

3d 330 (D.D.C. 2017).

349. N. Arapaho Tribe v. Burwell, 118 F. Supp. 3d 1264, 1269–70 (D. Wyo. 2015), appeal ﬁled sub

nom. N. Arapaho Tribe v. Azar, No. 15-8099 (10th Cir. Aug. 28, 2015), appeal dismissed, No. 15-8099

(10th Cir. Mar. 4, 2019).

350.

351. See Kawa Orthodontics, LLP v. Sec’y, U.S. Dep’t of Treasury, 773 F.3d 243, 248 (11th Cir.

2014); Ass’n of Am. Physicians & Surgeons v. Koskinen, 768 F.3d 640, 642–43 (7th Cir. 2014).

352. Texas v. United States, 300 F. Supp. 3d 810 (N.D. Tex. 2018), appeal ﬁled, No. 18-10545 (5th

Cir. May 7, 2018).

353. Id. at 846–48.

354. 136 S. Ct. 936, 947 (2016).

1522 THE GEORGETOWN LAW JOURNAL [Vol. 108:1471

address whether the ACA itself also preempted—or saved—state reporting

requirements, so the question remains open.

355

E. STATE COURT CASES: INTRAGOVERNMENTAL DISPUTES AND MORE

The state courts appear to have seen about 200 ACA-related cases, many of

which involve the statute only tangentially. One important set of cases involves

the intragovernmental disputes generated by political divisions over the ACA

and the Supreme Court’s decision in NFIB. By allowing states to choose whether

to opt out of the ACA’s Medicaid expansion, NFIB set the stage for legal disputes

within state governments over whether or not to expand. In many states, the gov-

ernor

and legislature disagreed over Medicaid expansion, even in states like Ohio

and Arizona that had both a Republican legislature and governor.

356

In Alaska,

Ohio, and Kentucky, legislators argued that the governor impermissibly accepted

federal funds for Medicaid expansion without the legislature’s agreement.

357

Courts mostly upheld the processes those states used to expand Medicaid, even

when governors acted on their own in the face of opposition in state

legisla-

tures.

358

In North Carolina, legislators successfully sued to keep the governor

from submitting a Medicaid state-plan amendment implementing the

expan-

sion.

359

In Arizona, legislators asserted that fees assessed against providers—nec-

essary

components of Arizona’s expansion ﬁnancing—were really taxes that

should not have been adopted without a legislative supermajority.

360

In Maine, the ﬁrst state to adopt Medicaid expansion through a ballot initiative,

litigation was ﬁled contesting the way in which the state government, at many times

355. Id. (“This anti-pre-emption provision might prevent any new ACA-created reporting obligations

from pre-empting state reporting regimes like Vermont’s, notwithstanding the incorporation of these

requirements in the heart of ERISA. The Court has no need to resolve this issue.” (citation omitted)).

The question may become relevant as well to the AHP cases, which involve the interplay between

ERISA and the ACA.

356. See Biggs v. Betlach, 404 P.3d 1243, 1244–45 (Ariz. 2017). State ex rel. Cleveland Right to Life

v. Ohio Controlling Bd., 3 N.E.3d 185, 189–90 (Ohio 2013).

357. Alaska Legislative Council v. Walker, No. 3AN-15-09208CI, 2016 WL 4073651, at *1–4

(Alaska Super. Ct. Mar. 1, 2016); State ex rel. Cleveland Right to Life, 3 N.E.3d at 190–91; Adams v.

Commonwealth, No. 13-CI-423, slip op. at 2–4 (Franklin Ky. Cir. Ct. Sept. 3, 2013).

358. See Ohio ex rel. Cleveland Right to Life, 3 N.E.3d at 191–92. The Ohio court held that the state

Controlling Board did not violate legislative intent by approving the state Department of Medicaid’s

request for additional appropriation authority to expand Medicaid. Id. Republican Governor Kasich used

the Controlling Board to expand Medicaid in the face of opposition by Republicans in the state legislature.

Id. at 190. In Arizona, the court held that the hospital assessment that the Arizona legislature passed to

fund the state portion of the funding for expansion was not a tax and, therefore, did not require a

supermajority vote in the legislature. Biggs, 404 P.3d at 1248. In Alaska, the court held that the governor

and the commissioner of the state Department of Health and Social Services did not violate the law by

accepting federal funding for Medicaid expansion without legislative approval. Alaska Legislative

Council, 2016 WL 4073651, at *9. Similarly, in Kentucky, a state court held that the Governor acted in

accordance with the law when he accepted federal funding for Medicaid expansion on his own. Adams,

No. 13-CI-423, slip op. at 3–4.

359. Berger v. Burwell, No. 5:17-cv-25-FL, 2017 WL 2709769, at *1 (E.D.N.C. Jan. 14, 2017).

360. Biggs, 404 P.3d at 1245.

2020] THE AFFORDABLE CARE ACT’S LITIGATION DECADE 1523

hostile to expansion, chose to implement or not to implement the initiative.

361

Other states adopted the expansion through voter initiative in 2018, only to see

the legislature and governor impose limits below what voters had approved. It

does not appear that these cutbacks have led to any litigation yet.

Earlier in the statute’s lifetime, there were more intragovernmental challenges

focused on the existential attacks on the law, including challenges to the validity

of ballot initiatives that prohibited states from implementing the ACA,

362

or chal-

lenges

to a state attorney general’s authority to unilaterally make a state a party to

cases arguing that the ACA was unconstitutional.

363

With respect to other cases in the states, looking to the approximately ﬁfty

cases that have reached the highest courts of the states, examples of the more

rele-

vant

cases include: (1) cases that challenge the ability of members of Congress to

get insurance via the District of Columbia small business insurance exchange;

364

(2) cases that concern whether worker’s compensation is subject to the same pro-

tections

as insurance under the ACA;

365

(3) disputes over whether certain medical

treatments would be covered under Medicaid post-ACA;

366

and (4) debates about

whether a wife would qualify under an ACA-subsidized exchange plan if her

hus-

band

did not sign up for employer-provided insurance for which he was

eligible.

367

V. BROADER SIGNIFICANCE FOR PUBLIC LAW

This ﬁnal Part brieﬂy reﬂects on the broader signiﬁcance of the decade of ACA

litigation for public law—constitutional, statutory, and administrative law—

beyond healthcare.

With respect to constitutional law, the past ten years of ACA litigation made

new law about the Commerce Clause, the taxing power, the Appropriations

Clause, the spending power, and the Tenth Amendment. These cases, as we have

discussed, were about Congress’s own powers but especially about its relation-

ships with the state and private implementers of its laws. The ACA also pushed

boundaries in administrative law—again in large part due to the law’s relation-

ships with its implementers—and charted new paths in statutory interpretation.

A. CONSTITUTIONAL LAW

One lesson from the ACA’s litigation decade is that it would have been much

simpler and cleaner, as a legal matter, for Congress to have federalized the entire

361. See, e.g., Me. Equal Justice Partners v. Hamilton, No. BCD-AP-18-02, 2018 WL 3702245 (Me.

Bus. & Consumer Ct. June 4, 2018).

362. Hoffman v. State, 328 P.3d 604, 605 (Mont. 2014); State ex rel. Ohio Liberty Council v.

Brunner, 928 N.E.2d 410, 412 (Ohio 2010).

363. See City of Seattle v. McKenna, 259 P.3d 1087, 1088 (Wash. 2011) (en banc).

364. Vining v. Exec. Bd. of D.C. Health Beneﬁt Exch. Auth., 174 A.3d 272, 276 (D.C. 2017).

365. Frith v. N.D. Workforce Safety & Ins., 845 N.W.2d 892, 893–94 (N.D. 2014).

366. Prunckun v. Del. Dep’t Heath & Human Servs., 201 A.3d 525, 527–28 (Del. 2019) (holding

skin-shocking treatment in community-based settings was not covered).

367. In re J.H., 160 A.3d 1023, 1024 (Vt. 2016).

1524 THE GEORGETOWN LAW JOURNAL [Vol. 108:1471

healthcare landscape. Politically, however, a full-scale federal takeover was not

palatable—and many viewed it unwise as a health policy matter, too. But a fully

federalized healthcare system would not have implicated the majority of constitu-

tional provisions that were subsequently litigated in court.

The next time the country needs a big, national social program, Supreme Court

decisions deriving

from the ACA may change the strategies Congress uses.

Mandates might be eschewed, for instance. The irony is that one of the least risky

schemes from a constitutional perspective would be a government tax-and-spend

program—the kind of big-government design that conservatives loathe and that

the ACA, with its grounding in the private market, was a policy compromise to

avoid. The RFRA cases too might have the same paradoxical effect of encourag-

ing

the kind of policy design that ACA opponents despise most—if religious

carve-outs interfere too much with services, maybe Congress will just have the

government provide those services to the public directly.

There are many other reasons why experts believe the ACA has paved the way

for even more ambitious reforms—reforms committed to government-provided,

centralized universal coverage. As one of us has detailed elsewhere, the legal and

political challenges themselves have changed the national conversation about and

expectations for our healthcare system in ways that point toward more

govern-

ment

involvement and more solidarity.

368

But the ACA cases also show us where

Congress treads on most solid authority and the kinds of government demands

that private implementers and the states are likely to resist.

The litigation has also continuously implicated the standing doctrine—that is,

who has the right to sue, and when controversies are ripe. There were a number of

cases in which courts declined to review parts of the ACA, or agency action based

on the statute, because they concluded that the parties challenging the statute or

the agency action lacked standing to sue. This was true of many of the early chal-

lenges to the individual mandate, where courts assessed some general taxpayer-

standing-type challenges as simply being “generalized grievances” about the

ACA as opposed to concrete individual claims of ﬁnancial harm or disruption

due to individuals’ needing to prepare for the mandate. Some courts also con-

cluded that because the shared responsibility requirements were not yet operating,

and individuals did not yet know what their ﬁnancial and health coverage circum-

stances would be in 2014, it could not safely be said that individual plaintiffs had

standing to challenge the mandate.

369

368. See Gluck & Scott-Railton, supra note 13, at 558–66.

369. Before NFIB, courts dismissed many individual challenges to the individual mandate, largely on

standing grounds. See, e.g., Boyle v. Sebelius, No. 2:11-cv-07868-GW-AJW, slip op. at 5 (C.D. Cal.

Feb. 3, 2012); Bryant v. Holder, 809 F. Supp. 2d 563, 571–72 (S.D. Miss. 2011) (ﬁnding no standing to

raise state employee claims, but ﬁnding standing to raise medical privacy claims); Bellow v. U.S. Dep’t

of Health & Human Servs., No. 1:10-cv-165, 2011 WL 2462205, at *1 (E.D. Tex. June 20, 2011);

Kinder v. Geithner, No. 1:10-cv-101-RWS, 2011 WL 1576721, at *4–8 (E.D. Mo. Apr. 26, 2011), aff’d,

695 F.3d 772 (8th Cir. 2012); Purpura v. Sebelius, No. 10–04814, 2011 WL 1547768, at *9 (D.N.J. Apr.

21, 2011), aff’d, 446 F. App’x 496 (3d Cir. 2011); Peterson v. United States, 774 F. Supp. 2d 418, 420

(D.N.H. 2011); N.J. Physicians, Inc. v. Obama, 757 F. Supp. 2d. 502, 510–11 (D.N.J. 2010), aff’d, 653

2020] THE AFFORDABLE CARE ACT’S LITIGATION DECADE 1525

Lack of standing also ruled out challenges to the Obama Administration’s deci-

sion

to delay the ACA’s employer mandate,

370

to its decision to expand ‘grand-

mother’ status to particular health plans that may not have qualiﬁed under the

precise terms of the grandfathering statute,

371

and to the policy of allowing mem-

bers

of Congress and congressional staff to qualify for coverage under the SHOP

small employer system.

372

The most important standing decision was probably House v. Burwell, the

CSR case, because it was a rare occasion of standing being granted to members

of Congress.

373

The opinion is nonprecedential, however, because the case settled

before appeal, and no court to date has relied on it to ﬁnd legislator standing.

374

On the other hand, at least where individuals have tried comprehensively to

challenge the ACA, courts have been fairly liberal with respect to individual

standing. NFIB reached the merits, apparently based purely on individual plain-

tiffs’ projections that they would be subject to the individual mandate

eventu-

ally

375

—the NFIB opinions themselves do not mention standing anywhere. King

involved an even more attenuated claim to individual standing. The individual

plaintiffs there alleged that they should qualify for an exemption from the indi-

vidual mandate because, as residents of states where the federal government oper-

ated the exchanges, they should not be treated as eligible for premium tax

credits.

376

From that refusal to accept a beneﬁt that the federally operated

exchange would have offered them, the individual plaintiffs had standing to try to

collapse the entire premium subsidy system.

F.3d 234 (3d Cir. 2011); Van Tassel v. United States, No. 1:10-cv-00310-TDS-PTS, slip op. at 4–5

(M.D.N.C. Nov. 15, 2010); Shreeve v. Obama, No. 1-10-cv-71, 2010 WL 4628177, at *4 (E.D. Tenn.

Nov. 4, 2010); Baldwin v. Sebelius, No. 3:10-cv-1033, 2010 WL 3418436, at *4–5 (S.D. Cal. Aug. 27,

2010), aff’d, 654 F.3d 877 (9th Cir. 2011).

370. See Kawa Orthodontics, LLP v. Sec’y, U.S. Dep’t of the Treasury, 773 F.3d 243, 248 (11th Cir.

2014); Ass’n of Am. Physicians & Surgeons v. Koskinen, 768 F.3d 640, 642 (7th Cir. 2014).

371. See West Virginia v. U.S. Dep’t of Health & Human Servs., 145 F. Supp. 3d 94, 95–96 (D.D.C.

2015), aff’d, 827 F.3d 81 (D.C. Cir. 2016).

372. See Johnson v. U.S. Ofﬁce of Personnel Mgmt., 783 F.3d 655, 658 (7th Cir. 2015).

373. See U.S. House of Representatives v. Burwell, 130 F. Supp. 3d 53, 58 (D.D.C. 2015).

374. Only three cases have cited House v. Burwell in the context of legislator standing, and all have

distinguished it. See Tennessee v. U.S. Dep’t of State, 931 F.3d 499, 501–02, 512–14 (6th Cir. 2019)

(holding that the Tennessee General Assembly lacks standing to challenge federal law requiring states to

provide Medicaid to refugees: “The General Assembly has not identiﬁed an injury that it has suffered,

such as disruption of the legislative process, a usurpation of its authority, or nulliﬁcation of anything it

has done, unlike in . . . Burwell.”); U.S. House of Representatives v. Mnuchin, 379 F. Supp. 3d 8, 11, 18

(D.D.C. 2019) (holding that the House has no standing to challenge President Trump’s plans to use

funds for his border wall that were appropriated for other purposes and referring to Burwell as a “slender

reed”); Cummings v. Murphy, 321 F. Supp. 3d 92, 95–96, 116, 117 n.9 (D.D.C. 2018) (ﬁnding that

individual members of the House Oversight Committee lacked standing to challenge federal agency’s

failure to respond to members’ records request in contrast to the institutional injury present in Burwell).

375. See, e.g., Fla. ex rel. Bondi v. U.S. Dep’t of Health & Human Servs., 780 F. Supp. 2d 1256,

1270–71 (N.D. Fla. 2011), aff’d in part, rev’d in part, 648 F.3d 1235 (11th Cir. 2011, and aff’d in part,

rev’d in part, NFIB, 567 U.S. 519 (2012); Goudy-Bachman v. U.S. Dep’t of Health & Human Servs.,

764 F. Supp. 2d 684, 690–91 (M.D. Pa. 2011).

376. See Complaint ¶¶ 11–14, King v. Sebelius, 997 F. Supp. 2d 415 (E.D. Va. 2013).

1526 THE GEORGETOWN LAW JOURNAL [Vol. 108:1471

In California v. Texas, the question was whether two individual Texans have

standing to challenge what remains of the individual mandate even though,

because Congress zeroed out the tax penalty amount, the individual Texans’ fail-

ure to maintain minimum essential coverage no longer triggers a tax penalty or

any other tangible, adverse legal consequence for them. Nevertheless, Judge

O’Connor found that these plaintiffs had standing—that even an allegedly tooth-

less command nevertheless qualiﬁes as “inherently binding” law, and the Fifth

Circuit afﬁrmed.

377

It should be noted that in the three major challenges to the ACA as a whole,

and in the House v. Burwell litigation about cost-sharing reduction payments, and

in most of the contraception cases, individuals who wanted to keep the beneﬁts

the ACA offered did not participate as parties. In NFIB, the litigation was brought

by individuals and states, challenging the individual mandate and the Medicaid

expansion, against the United States, which defended the ACA. In King, the liti-

gation was between individuals who claimed to want exemptions from the indi-

vidual mandate that they would not get if they received subsidies, and the United

States, again defending the ACA; people who wanted and would qualify for

premium tax credits did not participate as parties.

378

In House v. Burwell, low-

income people who were getting cost-sharing reductions and wanted them to

con-

tinue

tried to intervene on appeal, but the D.C. Circuit denied intervention.

379

the DeOtte contraception litigation, even though the district court certiﬁed nation-

wide classes of employers who do not want to promote contraception and individ-

uals who do not want to contribute to other individuals’ contraception,

380

the

district court did not consider forming a corresponding defense class of people

who wanted to get contraception from their objecting employers.

381

State standing has also been important. NFIB implicitly found that individuals

had standing to challenge the individual mandate and so did not reach the state

standing issue. States were not parties in King v. Burwell itself either, but they

were parties in that case’s Oklahoma and Indiana counterparts. Although the

dis-

trict

judge rejected the idea that Oklahoma had standing as a sovereign to impose

its preference for exempting Oklahoma employers from the employer mandate

377. Texas v. United States, 340 F. Supp. 3d 579, 593–95 (N.D. Tex. 2018), aff’d in part, vacated in

part, 945 F.3d 355 (5th Cir. 2019), cert. granted sub nom. California v. Texas, 140 S. Ct. 1262 (2020)

(mem.). The district court spread its individual-standing analysis over two opinions, the ﬁrst granting

partial summary judgment, Texas v. United States, 340 F. Supp. 3d at 585, the second entering judgment

under Federal Rule of Civil Procedure 54(b), Texas v. United States, 352 F. Supp. 3d 665, 672–78 (N.D.

Tex. 2018); and it made standing arguments in each opinion. The Fifth Circuit’s afﬁrmance on

individual standing is at Texas v. United States, 945 F.3d at 378–83.

378. And in Texas v. United States, people who beneﬁt from the ACA’s provisions, did not

participate as parties, even though the United States was no longer defending the ACA.

379. See U.S. House of Representatives v. Burwell, No. 16-5202 (D.C. Cir. Jan. 12, 2017).

380. DeOtte v. Azar, 393 F. Supp. 3d 490, 499 (N.D. Tex. 2019).

381. An exception to this pattern is Irish 4 Reproductive Health v. United States Department of

Health and Human Services, No. 3:18-cv-491-PPS-JEM, 2020 WL 248009 (N.D. Ind. Jan. 16, 2020),

where Notre Dame students and employees seeking contraception have afﬁrmatively challenged Notre

Dame’s agreements with the United States. See supra note 217 for further discussion.

2020] THE AFFORDABLE CARE ACT’S LITIGATION DECADE 1527

over low-income Oklahomans getting subsidies,

382

the judge did ﬁnd that

Oklahoma could raise its challenge in its role as a large employer,

383

which was

also the standing theory supporting the Indiana case as well.

384

In California v. Texas, the Fifth Circuit determined that the plaintiff states had

standing to challenge what remained of the individual mandate, because “the state

plaintiffs in this case have suffered ﬁscal injuries as employers,” having to ﬁll out

and submit forms about employees’ health insurance status.

385

The court found

that the federal defendants had standing to appeal because the federal

govern-

ment’s

continued enforcement of the ACA was sufﬁcient to give the government a

necessary stake in the litigation, even though they were no longer defending it.

386

The coalition of states led by California as interveners to defend the ACA also had

standing to appeal because they demonstrated the requisite showing of injury

resulting from the judgment of the district court.

387

The Fifth Circuit did not reach

the question of whether the House of Representatives as intervenor had

independ-

ent

standing to sue.

388

One question about state standing to challenge federal interpretations of the

ACA is whether states may obtain injunctions that apply nationwide. This ques-

tion has arisen in a number of ACA-related cases. The Ninth Circuit has twice

held, for example, that although states should get preliminary relief against fed-

eral rules limiting contraceptive coverage, an injunction geographically limited

to the plaintiff states would prevent the economic harm appearing in the record.

389

The Third Circuit’s economic-harms justiﬁcation for a nationwide injunction on

the same subject included the consideration that

“[m]any individuals work in a

state that is different from the one in which they reside. . .

. Out-of-state college

attendance further exacerbates the States’ injury.”

390

In California v. Texas, the

382. Oklahoma ex rel. Pruitt v. Sebelius, No. 6:11-cv-30, 2013 WL 4052610, at *6–7 (E.D. Okla.

Aug. 12, 2013).

383. Id. at *9.

384. Indiana v. IRS, 38 F. Supp. 3d 1003, 1009–11 (S.D. Ind. 2014).

385. 945 F.3d 355, 384; see id. at 384–87. The case was called Texas v. United States at this stage.

386. Id. at 375–76. The Fifth Circuit relied on the Supreme Court’s standing analysis in United States

v. Windsor, 570 U.S. 744 (2013).

387. Texas v. United States, 945 F.3d at 376–77.

388. The court seemed skeptical of this theory of standing, writing that the Supreme Court’s recent

decision in Virginia House of Delegates v. Bethune-Hill, 139 S. Ct. 1945, 1953 (2019), “call[ed] the

House’s standing to intervene into doubt.” Texas v. United States, 945 F.3d at 377.

389. California v. U.S. Dep’t of Health & Human Servs., 941 F.3d 410, 431 (9th Cir. 2019);

California v. Azar, 911 F.3d 558, 584 (9th Cir. 2018).

390. Pennsylvania v. President United States, 930 F.3d 543, 576 (3d Cir. 2019), cert. granted sub

nom. Trump v. Pennsylvania, 140 S. Ct. 918 (2020) (mem.), consolidated with Little Sisters of the Poor

Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct. 918 (2020 (mem.). An alternative way to

challenge federal interpretations of the ACA would be through a nationwide class action by individuals,

including employers, affected by the policy. That justiﬁed Judge Reed O’Connor’s nationwide

permanent injunction in the DeOtte v. Azar objections-to-contraception case, 393 F. Supp. 3d 490, 513–

14 (N.D. Tex. 2019), and it has justiﬁed Judge Michael Simon’s nationwide preliminary injunction in

the John Doe #1 v. Trump visa-denial case. See John Doe #1 v. Trump, No. 3:19-cv-1743-SB, slip op. at

43–46 (D. Or. Nov. 26, 2019). Judge Simon later certiﬁed a class. John Doe #1 v. Trump, 3:19-cv-

01743-SI (D. Or. Apr. 7, 2020).

1528 THE GEORGETOWN LAW JOURNAL [Vol. 108:1471

United States eventually argued that enforcement of the ACA should be enjoined

only in the plaintiff states, an argument the Fifth Circuit commended to the atten-

tion of the district court.

391

Courts also issued nationwide preliminary injunctions

in the case concerning the public charge rule, all of which were stayed by the

Supreme Court. These cases play into the broader emerging debate about the va-

lidity of such injunctions across all ﬁelds of law.

392

In the Supreme Court’s order

lifting the nationwide injunction of the public charge rule, for instance, Justice

Gorsuch, with Justice Thomas concurring, wrote separately to criticize nation-

wide injunctions in general.

393

B. ADMINISTRATIVE AND STATUTORY LAW

The ACA litigation has also inﬂuenced doctrinal development in administra-

tive law and statutory interpretation. The Religious Freedom Restoration Act

cases, as discussed, have broad potential implications for government regulation

of religious employers. The many Administrative Procedure Act cases that have

been brought to defend the ACA have not yet broken much new doctrinal ground

about the APA itself, but they have—especially the Medicaid work-requirement

cases—expanded the meaning of some of the public programs that are part of the

ACA. For instance, the work-requirement decisions describe Medicaid’s core

objective, from which administrative waivers now cannot deviate, as “granting

health care coverage to those who cannot afford it”

394

and “providing health care

coverage without any restriction geared to healthy outcomes, ﬁnancial

independ-

ence

or transition to commercial coverage”

395

—a signiﬁcant characterization of

Medicaid under a solidarity and universality principle of coverage that may limit

what administrators can do to narrow the program in the future.

Also notable about the Medicaid work requirements cases is they help settle a

longstanding question about whether section 1115 waivers are reviewable. The

ACA also broke new ground in transparency of waiver applications, by adding

notice and comment requirements for section 1115 that are not replicated in other

federal waiver provisions.

396

These transparency requirements have provided liti-

gators

with an administrative record, making section 1115 waiver cases,

391. 945 F.3d at 402–03.

392. Compare, e.g., Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131

ARV. L. REV. 417, 418 (2017), with Mila Sohoni, The Lost History of the “Universal” Injunction, 133

ARV. L. REV. 920, 922 (2020). See also Trump v. Hawaii, 138 S. Ct. 2392 (2018). (Thomas, J.,

concurring) (“These injunctions are beginning to take a toll on the federal court system—preventing

legal questions from percolating through the federal courts, encouraging forum shopping, and making

every case a national emergency for the courts and for the Executive Branch. I am skeptical that district

courts have the authority to enter universal injunctions.”).

393. Dep’t of Homeland Sec. v. New York, 140 S. Ct. 599 (2020) (mem.) (granting application for a

stay).

394. Stewart v. Azar, 313 F. Supp. 3d 237, 261 (D.D.C. 2018) (quoting W. Va. Univ. Hosps., Inc. v.

Casey, 885 F.2d 11, 20 (3d Cir. 1989)).

395. Gresham v. Azar, 950 F.3d 93, 102 (D.C. Cir. 2020).

396. 42 U.S.C. § 1315(d)(2)(A), (C) (2012).

2020] THE AFFORDABLE CARE ACT’S LITIGATION DECADE 1529

including the work requirements cases, easier to litigate successfully and more

like the typical APA case.

We already have discussed the signiﬁcance of the Court’s statutory interpreta-

tion decision in King v. Burwell—in particular, its refusal to apply the Court’s

preferred interpretive method of strict textualism to a likely mistake in the ACA.

But as noted, the Court has not returned to that approach since King. Nor did

King explicitly answer the question of what courts should do about obvious statu-

tory mistakes, even as the case itself made clear how unappealing the Court’s ba-

sic approach to that question was at the time—that is, to interpret the statute

literally and let the chips fall where they may.

397

In King, the Court found a way

around that problem with its special interpretive approach—what it called

inter-

preting

the ACA in the broader context of “the legislative plan.”

398

King more deﬁnitively addressed another important interpretation question,

one about administrative deference. Before King, the Court generally applied

Chevron deference to interpretations of statutes by agencies charged with

admin-

istering

them, especially where those interpretations were made with the force of

law,

399

but had begun to develop some exceptions. One such exception was for

so-called “major questions”—matters of major economic, political, or policy

sig-

niﬁcance,

that the Court on a handful of occasions doubted Congress meant to

commit to agency discretion.

400

But the applicability of the major questions

exception remained in question before King. Another open question was whether

an agency deserves more or less interpretive deference depending on whether the

issue is within its area of expertise. Until King, the Court had never explicitly so

held.

In King the Court shed light on both doctrines. It did not make express, how-

ever, whether its decision not to defer to the agency was because the agency

(there, the IRS) lacked expertise, or because the question was too important, or

both:

The tax credits are among the Act’s key reforms, involving billions of dollars

in spending each year and affecting the price of health insurance for millions

of people. Whether those credits are available on Federal Exchanges is thus a

question of deep “economic and political signiﬁcance” that is central to this

statutory scheme; had Congress wished to assign that question to an agency, it

surely would have done so expressly. It is especially unlikely that Congress

would have delegated this decision to the IRS, which has no expertise in craft-

ing health insurance policy of this sort.

. . .

397. See generally Richard A. Posner, Comment on Professor Gluck’s “Imperfect Statutes, Imperfect

Courts,” 129 H

ARV. L. REV. F. 11 (2015).

398. King v. Burwell, 135 S. Ct. 2480, 2496 (2015).

399. See United States v. Mead Corp., 533 U.S. 218 (2001).

400. See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000); MCI Telecomms. Corp.

v. Am. Tel. & Tel. Co., 512 U.S. 218 (1994).

1530 THE GEORGETOWN LAW JOURNAL [Vol. 108:1471

It is instead our task to determine the correct reading of Section 36B.

401

King was also signiﬁcant for being the ﬁrst modern Supreme Court case to seri-

ously

consider the circumstances of a statute’s enactment in interpreting it—and,

then, for cutting the statute some slack as a result of its unorthodox legislative

process.

402

Even before the Supreme Court decision, the King litigation had

opened the door to new advances in this vein of statutory interpretation theory.

For example, one idea introduced by one of us during the litigation that took root

at the time and has since grown legs is the “CBO Canon”—the proposition

that ambiguities in a statute should be construed in light of the Congressional

Budget Ofﬁce’s score of the bill.

403

Abbe Gluck, The “CBO Canon” and the Debate Over Tax Credits on Federally Operated

Health Insurance Exchanges, B

ALKINIZATION (July 10, 2012), https://balkin.blogspot.com/2012/07/cbo-

canon-and-debate-over-tax-credits.html [http://perma.cc/VM2X-ATU3] (introducing the concept). For

elaboration, see also Abbe R. Gluck, Congress, Statutory Interpretation, and the Failure of Formalism:

The CBO Canon and Other Ways That Courts Can Improve on What They Are Already Trying to Do, 84

U. C

HI. L. REV. 177, 187–91 (2017) [hereinafter Gluck, Congress, Statutory Interpretation, and the

Failure of Formalism].

The ACA was drafted in the shadow of a clear

budget target from the President and continuously tweaked to remain within that tar-

get. The CBO Canon argument is that any interpretation wholly inconsistent with

the assumptions on which the CBO score depended is presumptively a misconstruc-

tion of the law and of congressional intent. Since King, there has been robust aca-

demic debate on whether and when the circumstances of a statute’s enactment, or

speciﬁcs of congressional procedure—whether the CBO score, or other features,

like the budget process—should affect a statute’s interpretation.

404

NFIB, even though a constitutional case, also made signiﬁcant statutory rul-

ings. One was simply the way in which the Court interpreted Medicaid. In the

Court’s view, the centrality and scale of Medicaid made unacceptably severe any

threat of losing Medicaid funds if a state did not fully expand under the ACA. In

retrospect, however, this very aspect of NFIB forecast the extent to which

Medicaid would become such an important part of the ACA’s story. The Chief

Justice’s opinion in NFIB emphasized how the ACA had tried to change

Medicaid: “It is no longer a program to care for the neediest among us, but rather

an element of a comprehensive national plan to provide universal health insur-

ance coverage.”

405

He thought that the expansion was expendable in a way the

mandate was not—that is, the Court could gut the mandatory nature of the

expan-

sion

without destabilizing the entire ACA. Ironically, the basis of that holding—

401. King, 135 S. Ct. at 2489 (citations omitted).

402. See Gluck, supra note 83, at 96–99.

403.

404. Compare, e.g., Gluck, Congress, Statutory Interpretation, and the Failure of Formalism, supra

note 403; Gluck, supra note 91; Abbe R. Gluck & Jesse M. Cross, The Congressional Bureaucracy, 168

U. P

A. L. REV. (forthcoming 2020) (detailing the legislative-drafting-related work of the nonpartisan

institutions inside Congress and how it should affect interpretation); and Abbe R. Gluck, Anne Joseph

O’Connell & Rosa Po, Unorthodox Lawmaking, Unorthodox Rulemaking, 115 C

OLUM. L. REV. 1789

(2015); with John F. Manning, Inside Congress’s Mind, 115 C

OLUM. L. REV. 1911 (2015); and Ryan D.

Doerﬂer, Who Cares How Congress Really Works?, 66 D

UKE L.J. 979 (2017).

405. 567 U.S. 519, 583 (2012) (plurality opinion).

2020] THE AFFORDABLE CARE ACT’S LITIGATION DECADE 1531

Medicaid’s centrality to state healthcare systems and its new universality princi-

ple—was ultimately the main reason why the ACA was not repealed and replaced

in 2017, even after the Court allowed states to opt out without penalty.

406

And it

is the Medicaid expansion’s philosophy of universality and solidarity—and the

government’s role in both—that underpins much of the normative shift around

healthcare that has come since.

Second, by making the Medicaid expansion in effect optional, the Court not

only handed the states’ leverage vis-a

-vis the federal government, but, at the

same time, unwittingly created new pathways for the ACA’s entrenchment. The

seven years since NFIB was decided have seen uninterrupted state–federal nego-

tiation over the Medicaid program that have invested many state ofﬁcials, includ-

ing Republicans, with the role of tailoring and entrenching Medicaid in their

various states.

407

Another kind of statutory entrenchment that grew out of the

NFIB opinion was democratic and expressive. The very fact that Medicaid expan-

sion is now a choice has put the question of Medicaid’s value—and more gener-

ally whether everyone should be covered—front and center as a matter of public

deliberation in each state. The question whether to expand Medicaid has become

the stuff of front-page news, gubernatorial elections, and even ballot initiatives.

408

E.g., John George, Wolf Begins Dismantling Corbett’s Healthy PA Plan, P

HILA. BUS. J. (Feb.

10, 2015, 3:46 PM), https://www.bizjournals.com/philadelphia/blog/health-care/2015/02/wolf-begins-

dismantling-of-corbett-s-healthy-pa.html (describing a shift in Medicaid expansion policy in

Pennsylvania after a new governor was elected); David K. Jones, Obamacare Politics: Lessons from the

Kentucky Governor’s Race, H

EALTH AFF. (Nov. 4, 2015), https://www.healthaffairs.org/do/10.1377/

hblog20151104.051634/%20%20full/ [https://perma.cc/52LP-N53P] (noting the role of the ACA in the

2017 Kentucky gubernatorial race); Dan Mangan, Health Care Played Big Role in Democratic Win in

Virginia: Poll, CNBC (Nov. 8, 2017, 7:58 PM), https://www.cnbc.com/2017/11/08/health-care-played-

big-role-in-democratic-win-in-virginia-poll.html [https://perma.cc/8DRL-58UN] (noting that almost

70% of voters in the 2017 Virginia gubernatorial election said healthcare was at least a very important

issue in their choice); Rachana Pradhan, Scott Walker Wants to Save Obamacare in Wisconsin, P

OLITICO

(Feb. 23, 2018, 5:00 AM), https://www.politico.com/story/2018/02/23/scott-walker-obamacare-

wisconsin-358043 [https://perma.cc/5WPH-FENF] (noting that Republican Governor Scott Walker of

Wisconsin was campaigning on saving the ACA in his state); see also Dylan Scott, How Obamacare

Shook Up the Arkansas GOP Governor’s Primary, V

OX (May 22, 2018, 11:05 AM), https://www.vox.

com/policy-and-politics/2018/5/21/17369478/arkansas-governor-election-asa-hutchinson-jan-morgan

[https://perma.cc/9JJQ-2DD8] (attributing a Republican governor’s popularity partly to expansion of

Medicaid).

It has become the topic of state legislation and executive orders that have sought

to bypass opposing factions of state government to accomplish the expansion.

409

406. See supra Section II.C; see also Gluck & Scott-Railton, supra note 13, at 500 (further

explaining the central role of Medicaid in the defeat of Republican efforts to repeal and replace the ACA

in 2017).

407. In the very different context of abortion, prominent advocates have argued that state-by-state

enactment rather than top-down ﬁat could have been a more effective entrenchment strategy. See, e.g.,

Ruth Bader Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C. L.

EV. 375, 381–82 (1985) (describing a shift in the aftermath of Roe v. Wade from state legislatures

moving “toward liberalization of abortion statutes” to reenergized opposition); see also R

ICHARD A.

OSNER, LAW, PRAGMATISM, AND DEMOCRACY 124–26 (2003) (arguing that Roe stopped “state

experimentation with abortion laws” that might have allowed “some approximation to consensus” to

emerge).

408.

409. See Gluck & Scott-Railton, supra note 13, at 518–21.

1532 THE GEORGETOWN LAW JOURNAL [Vol. 108:1471

It is a constant conversation about coverage and who is and should be left out. All

of that has contributed to the ACA’s entrenchment and normative transformation

from a statute that once was thought to be an uneasy compromise with the market

into one that now stands for universal health coverage.

410

NFIB also introduced new ideas about severability, the statutory interpretation

doctrine now at issue in Texas. The four dissenting Justices would have struck

down the entire statute; they viewed any part of the law ruled invalid—whether

the Medicaid expansion or the mandate—as inextricably intertwined with the

rest. That was an aggressive and unusual position to take, given that the Court has

consistently applied a presumption in favor of severability, grounded in the

notion that the goal should be to preserve as much of the statute as possible.

411

As discussed, the Chief Justice’s opinion in King broke new ground in consider-

ing

the unorthodox circumstances of the ACA’s enactment in interpreting it. But

the portion of the NFIB dissent on severability was arguably a forerunner, because

it was the ﬁrst time that members of the Court addressed the question of whether

the particular features of a statute or its legislative process—in the case of the

ACA, a long, omnibus law with many titles and provisos of different signiﬁcance

—should have a special severability doctrine. The dissent explained:

The Court has not previously had occasion to consider severability in the con-

text of an omnibus enactment like the ACA, which includes not only many

provisions that are ancillary to its central provisions but also many that are

entirely unrelated—hitched on because it was a quick way to get them passed

despite opposition, or because their proponents could exact their enactment as

the quid pro quo for their needed support. When we are confronted with such a

so-called “Christmas tree,” a law to which many nongermane ornaments have

been attached, we think the proper rule must be that when the tree no longer

exists the ornaments are superﬂuous.

412

This twist on the doctrine was in tension with current precedent and has not

been mentioned in a case since NFIB. It may resurface when the Supreme Court

hears the Texas v. United States appeal, California v. Texas, although the sever-

ability question is presented quite differently there.

413

410. As this Article went to press, the ACA’s solidary-enhancing features—in particular its robust

safety net, including the Medicaid expansion and the insurance subsidies—were being deployed as

frontline defenses to insure the population in the face of the COVID-19 pandemic and the accompanying

economic downturn.

411. See Brief of Amici Curiae Jonathan H. Adler, Nicholas Bagley, Abbe R. Gluck, and Ilya Somin

in Support of Intervenors-Defendants-Appellants, supra note 119, at 20; see also Free Enter. Fund v.

Public Co. Accounting Oversight Bd., 561 U.S. 477, 509 (2010); Ayotte v. Planned Parenthood of N.

New England, 546 U.S. 320, 329 (2006).

412. NFIB v. Sebelius, 567 U.S. 519, 705 (Scalia, Kennedy, Thomas & Alito, JJ., dissenting).

413. See supra note 119. In California v. Texas, Congress’s intent to preserve the rest of the ACA is so

clear—because Congress itself repealed the mandate penalty and left the rest of the ACA standing—that it

would be a strange application of any new principle about omnibus statutes to invalidate the whole ACA

there.

2020] THE AFFORDABLE CARE ACT’S LITIGATION DECADE 1533

CONCLUSION

There is a lot more that we could say about the decade of ACA litigation, but

space permits just two concluding points. First, the statute’s resilience has been

extraordinary. No law in American history has survived such an onslaught, and this

Article has only discussed one prong of it. The ACA has also been relentlessly

attacked in the political sphere, by the states, and by the President himself. How and

why the statute survived—and became even more normatively transformative—is

the subject of another paper by one of us in this journal.

414

Second, from the moment when Florida and other states ﬁled suit to invalidate

the law, much of the ACA litigation has not been about only invalidating a federal

policy as applied to a particular plaintiff but rather about invalidating beneﬁts the

government would like to award to people other than the plaintiff and the struc-

tures through which those beneﬁts are delivered. As to the latter, obligations the

ACA puts to the states and private actors—most importantly the insurance indus-

try—are front and center in court throughout the decade. As to the former, NFIB

was about much more than halting Medicaid expansion in the plaintiff states; it

was about halting it everywhere. King was a case about someone seeking an

exception from the insurance requirement to try to bring down the law’s entire

subsidy structure.

The crux of almost all of these cases is the extent to which government should

be involved in the assurance, payment and delivery of healthcare for the broader

citizenry. That once again reﬂects the tension and ongoing struggle between a

universal and community-oriented approach to healthcare on the one hand and an

individual, market model on the other. Indeed, this tension, at its core, is what the

ACA is about.

414. Gluck & Scott-Railton, supra note 13.

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