Affordable Care Act

  • December 19, 2014
    Guest Post

    by Nicholas Bagley, Assistant Professor of Law, University of Michigan Law School. This piece first appeared at The Incidental Economist.

    Before the Supreme Court granted King v. Burwell, the Journal on Health Politics, Policy and Law invited me to write a counterpoint to an essay by Jonathan Adler and Michael Cannon, two of the architects of the litigation. I’m pleased to report that drafts of their point and my counterpoint are now available.

    Writing the counterpoint allowed me to pull together a punchy, non-technical, and thorough explanation for why I think the challengers should lose this case. It also gave me a chance to emphasize the strongest argument in the government’s favor—a point that’s at risk of getting lost in the fog of statutory analysis.

    To prevail, it’s not enough for the King challengers to show that it’s possible to read the ACA to eliminate tax credits from states that refused to set up their own exchanges. They must also demonstrate that the ACA does so unambiguously—and that the IRS’s contrary interpretation is therefore unreasonable. Under Chevron, if the ACA could be read in a couple of different ways, the courts owe deference to the IRS’s authoritative decision about how best to read it.

    The challengers must therefore believe that the judges and commentators who read the statute differently than they do—including yours truly—are all behaving unreasonably. That’s an extraordinary claim, one that, as Adrian Vermeule has noted, “verges on self-refutation.” As I explain in my counterpoint:

    [E]ven if you think that Adler and Cannon’s [interpretation] is plausible, maybe even attractive, the contrary interpretation offered by the government is at least reasonable. That brings me to the aspect of their argument that troubles me the most: their unyielding conviction that they’ve identified the only possible construction of the ACA. Nowhere do they so much as acknowledge the possibility that maybe, just maybe, they’re wrong.

    That’s because they can’t admit to doubt. Because of the deference extended to agency interpretation, doubt means they lose. But their unwillingness even to acknowledge ambiguity reflects an important difference between legal advocacy and neutral interpretation. To be clear, Adler and Cannon deserve immense credit for their lawyerly ingenuity: they’ve constructed a facially plausible argument in support of an exceedingly strange interpretation of the ACA. But the courts would violate their obligation of fidelity in statutory construction if they mistook that ingenuity for genuine obeisance to congressional will. The latest challenge to the ACA is political activism masquerading as statutory restraint.

  • December 18, 2014

    by Jeremy Leaming

    In a surprising, unsettling move late in the year, the U.S. Supreme Court decided to hear a challenge to an Obamacare provision integral to keeping the popular health care law functional.

    In case you missed them, we suggest some more interesting, persuasive and measured responses to the statutory challenge below. We provided other noteworthy and powerful articles, earlier in the fall, which are available in this post.

    The material we’re highlighting now is from legal scholars, who in different ways have examined the legal argument against crucial language in the Affordable Care Act meant to help low-income Americans afford health care coverage. (Also see the Dec. 18 piece for ACSblog by Georgia State University law school Professor Neil Kinkopf.)

    Andrew Koppelman, the John Paul Stevens Professor of Law and Professor of Political Science at Northwestern University, in a piece for the New Republic looks at the efforts to topple the ACA. A legal argument aside, Koppelman writes, “When is it acceptable to deliberately aim to harm huge numbers of people in order to score a symbolic point?” If the argument were to win at the Supreme Court, which is likely to hear oral argument early in 2015, “about 4.5 million low-and-middle workers” in numerous states would lose health care coverage, he notes.

    At The Incidental Economist, University of Michigan law school professor Nicholas Bagley, who posted for ACSblog earlier this year on the argument when it was before the D.C. Circuit, provides a grouping of his articles, posts and podcast discussions about the matter now before the Supreme Court.  “My first post,” he wrote was devoted to showing why “the government’s contextual reading of the ACA makes better sense of the statute than the challengers’ cramped reading of a single provision. A district court judge in D.C. endorsed that reasoning the day after I wrote the post; I wrote about his decision here.”

    A compelling and accessible look at the statutory challenge to the ACA comes from Professor David Ziff, a Law Lecturer at the University of Washington School of Law. Ziff focuses on the legal argument being made against the ACA, and the need to seriously engage it.

  • December 18, 2014

    by Neil Kinkopf, Professor of Law, Georgia State University.

    The House of Representatives has passed over 50 measures to repeal the Affordable Care Act. The Supreme Court hasn’t yet entertained quite that many challenges, but it seems intent on catching up. Having resolved the major constitutional controversies, the latest challenge, King v. Burwell, is statutory. 

    To understand the arguments and the stakes in this case, we have to first take a step back and review how the ACA works. The ACA requires (almost) all individuals to have qualified health insurance. This requirement of nearly universal coverage is crucial to making the Act work. To make health insurance affordable, the Act provides subsidies to income-eligible individuals. To make health insurance available, the ACA seeks to establish a marketplace – an exchange, in the terms of the Act – in each state. The Act contemplates that each state government will establish an exchange. If a state government fails to establish an exchange, the federal government is mandated to step in and establish an exchange for the state.  

    The ACA grants subsidies to income-eligible individuals who purchase insurance on “an exchange established by the state.” This is the key phrase, for the challengers assert that it refers exclusively to exchanges established by state governments. If that interpretation is correct, the consequence is that individuals in states whose exchange is established by the federal government (because their state government refused or failed to establish one) are ineligible for the insurance subsidy. This, according to the law’s proponents, would gut the ACA, rendering health insurance unaffordable for millions of Americans. The law’s challengers reply that the meaning of the phrase is plain and that meaning must prevail.  There are many excellent posts demonstrating that the challengers’ plain meaning reading is inconsistent with the text and structure, not to mention the purpose and intent, of the ACA. I do not wish to repeat those arguments. Instead, I want to examine whether the challengers’ reading of the statute actually captures the plain meaning of the key phrase without resorting to the ACA’s broader structure and context (which, I hasten to add, are essential components of proper textualist, plain meaning analysis).

  • December 9, 2014

    by Caroline Cox

    Vikram David Amar writes at Verdict why the federalism lessons of the 2012 Affordable Care Act case weaken the argument in King v. Burwell.

    In Reuters, Joan Biskupic, Janet Roberts, and John Shiffman consider the small group of elite lawyers that dominate the Supreme Court docket.

    Conor Friedersdorf of The Atlantic writes about applying the “broken windows” theory to the police.

    At Bloomberg View, Noah Feldman reviews the recent Supreme Court case on Amtrak that considers how much lawmaking authority Congress can delegate to other bodies.

  • November 19, 2014

    by Caroline Cox

    Simon Lazarus argues at The New Republic that supporters of the Affordable Care Act are inadvertently recycling conservative arguments when defending the healthcare law against the latest legal challenge.

    At The Economist’s Democracy in America blog, Steve Mazie considers empathy on the Supreme Court. He argues that their “small and privileged” circles limit their perspectives.

    Stephanie Mencimer discusses the Alabama redistricting cases for Mother Jones, arguing that the state that helped gut the Voting Rights Act is now using it to justify racial gerrymandering.

    Oliver Roeder of FiveThirtyEight explains why it is so difficult to predict Supreme Court rulings.

    At CNN, Ed O’Keefe reports on Justice Samuel Alito’s recent remarks about the press and criticisms of the Court’s lack of diversity.