Affordable Care Act

  • November 13, 2015
    Guest Post

    by Samuel A. Marcosson, Professor of Law, University of Louisville Louis D. Brandeis School of Law

    On November 6, the Supreme Court granted cert in seven cases (which it promptly consolidated for briefing and argument as Zubik v. Burwell) to resolve the issue it left open when it ruled in Burwell v. Hobby Lobby that private, for-profit companies are entitled to a religious exemption from the Affordable Care Act’s mandate to provide contraceptive coverage to their employees. At issue is whether the accommodation the government provides to nonprofit employers satisfies the requirements of the Religious Freedom Restoration Act (RFRA). If it doesn’t, employees of these nonprofits will, like their counterparts at Hobby Lobby, lose their contraceptive coverage. A decision exempting the nonprofits from the contraceptive mandate would make Zubik one of the landmarks of the Term, and a disaster in the Court’s religion jurisprudence.

    Zubik tests the limits of the dangerous path the Court began to walk in Hobby Lobby. The majority opinion there departed from the Court’s long-standing approach in religious accommodation cases of carefully considering the impact of a proposed accommodation on third parties who would be burdened by it. In Hobby Lobby, of course, those third parties were the employees who lost coverage for contraceptive care that, under the ACA, is an essential element of comprehensive health insurance and which, for many, avoids enormous expense and “helps safeguard the health of women for whom pregnancy may be hazardous, even life threatening.” The Court gave almost no weight to the interests and needs of those employees who would be deprived of the essential coverage the ACA had mandated.

    The Court faces an even starker choice in Zubik because the claim on the other side of the scale, the burden claimed by the employers to their religious exercise, is more attenuated than it was in Hobby Lobby. A nonprofit that objects to providing contraceptive coverage receives an accommodation simply by certifying to HHS that it has a religious objection. As Justice Alito admitted in Hobby Lobby, a nonprofit which files the certification is “effectively exempted . . . from the contraceptive mandate.” In other words, to be accommodated under the ACA regulations, all the objecting nonprofits must do is tell HHS exactly what they are telling the Supreme Court: that they have a religious objection to providing contraceptive coverage.

  • September 16, 2015

    by Nanya Springer

    In the New Republic, Simon Lazarus of the Constitutional Accountability Center examines Judge Rosemary Collyer’s decision to entertain an unrealistic effort by House Speaker John Boehner aimed at destroying the Affordable Care Act.

    In The New York Times, Noam Scheiber reports that as more men feel entitled to take time off for family reasons, the number of fathers filing discrimination lawsuits against their employers is increasing.

    Amy Goldstein, Jeff Guo and Lazaro Gamio report in The Washington Post’s Wonkblog that while nine million people have gained health care coverage since 2013, wages and poverty levels have remained stagnant and income inequality remains high.

  • August 3, 2015
    Guest Post

    by Simon Lazarus, Senior Counsel, Constitutional Accountability Center

    *This post originally appeared on Balkinization.

    Chief Justice John Roberts sent President Obama off for the July 4 holiday in what must have been a good mood, secure that his signature legislative accomplishment, the Affordable Care Act, had survived a second lawsuit designed to cripple it.  In King v. BurwellRoberts had mobilized a 6-3 majority to reject a claim by health reform opponents that ACA-prescribed tax credits were not available on federally run exchanges.  In addition to helping secure Obama’s legacy, the decision evidently bumped up Obama’s public approval ratings.  But the celebration must be tempered.  This big win is not the President’s doing, nor that of the Executive Branch he controls.  Instead, it was due to two conservative justices, the Chief and Associate Justice Anthony Kennedy, whose agendas, while generally divergent from his, meshed on this important occasion.  How often will these stars align again? 

    That question is not academic.  King v. Burwell is by no means the last case in which the President’s political opponents are seeking to cancel or gut his key initiatives.  Indeed, two currently await decisions in lower federal courts. The first lawsuit is Texas’ challenge to the Administration’s immigration policy—to defer, on a case-by-case basis, removal of some four million undocumented immigrants who do not fall within DHS priorities for enforcing the nation’s immigration laws. The second lawsuit is House Republicans’ challenge to significant components of the administration’s ACA implementation.  A third challenge, to the EPA’s proposed Clean Power Plan —the crown jewel of Obama’s anti-global warming agenda— is likely when its regulations are finalized in early August.

    Over the next three days, I’ll discuss the upcoming challenges to Obama’s policy agenda. I begin, however, with a discussion of what Chief Justice Roberts’ opinion in King v. Burwell might mean for these lawsuits, and others that may follow them.

  • August 3, 2015
    Guest Post

    by Stacey Dembo, Law Offices of Stacey J. Dembo

    This summer will mark two important milestones for public benefit programs in the United States. The Social Security Act will be celebrating its 80th anniversary on August 14th‒President Franklin D. Roosevelt signed the Social Security Act into law on that date in 1935. And last week marked the 50th anniversary of the enactment of the amendments that expanded the Social Security Act to establish the Medicare and Medicaid programs. This 50th anniversary provides an opportunity for us to reflect on the vital lifelines Medicare and Medicaid provide for our nation’s most vulnerable.

    It’s hard to believe that before 1966 roughly half of all people 65 and over and many people with disabilities, children, pregnant women and low-income working Americans were unable to afford the medical care they needed. When President Lyndon B. Johnson signed the amendments creating Medicare and Medicaid, he said the programs would correct “the injustice which denies the miracle of healing to the old and to the poor.”

    Now 50 years later, Medicare and Medicaid together cover over 100 million people, or about 1 in 3 Americans. Medicare covers almost all elderly Americans and some younger adults who are disabled. Medicare Part A, which covers hospital stays, nursing home care and hospice, is financed by the payroll taxes workers and employers pay. Medicare Part B, which covers doctors’ visits, surgeries and medical devices like wheelchairs, is paid for by Medicare recipients through income-based premiums. Medicaid, on the other hand, is financed via federal and state funds. It covers low-income adults, people with disabilities, half of all low-income children and pregnant women.

  • June 30, 2015
    Guest Post

    by Robert N. Weiner, partner, Arnold & Porter LLP

    *This post originally appeared on

    The first lawsuit seeking to strike down the Affordable Care Act (ACA) came just seven minutes after the President signed the bill on March 23, 2010. The assaults continued even after the Supreme Court upheld the law as constitutional. For all but those first seven minutes, the ACA has weathered nonstop legal attack, as its opponents sought to enlist judges to undo their political defeats in Congress.

    To that end, an American Enterprise Institute Conference in late 2010 foraged through the 900 pages of the ACA in search of some plausible flaw to eviscerate the statute “as a matter of political hygiene.” All the quest turned up was an awkward phrase in what the Court in King called the “ultimate ancillary provision: a sub-sub-sub section of the Tax Code.” This previously undiscovered provision supposedly barred subsidies that help low-income families afford insurance if their States opted to have the Federal Government establish insurance Exchanges rather than doing it themselves. Congress, in other words, deliberately embedded a self-destruct mechanism deep in the statute.

    Before jumping to the four-word phrase at issue, it is not only useful but necessary to examine its context ‒ the history, purpose, and structure of the ACA, as the Court did in King. Congress enacted the ACA to reduce the number of people without health insurance. The law barred insurers from refusing to cover consumers because of their preexisting illnesses, but counterbalanced that prohibition with a requirement that virtually everyone maintain insurance coverage. To make that requirement affordable, the ACA directed each state to establish a marketplace, called an Exchange, that would function like Travelocity, affording individual consumers the knowledge and leverage to negotiate insurance contracts as favorable as those offered to purchasers of large group policies. To ensure that these Exchanges functioned everywhere, the Act instructed the Secretary of HHS to step in and establish “such Exchange” if the State did not do so itself. As a further step to make insurance affordable, the ACA also lowered the net cost by providing tax subsidies, based on income, for those purchasing policies on an Exchange.