This article reviews the primary avenues of judicial challenge to the ACA, focusing on those that have reached, or have the potential to reach, the Supreme Court. The review demonstrates how deep-seated public policy opposition can be expressed through litigation.
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References
1.
A casual search of Westlaw for court decisions using the phrase “Affordable Care Act” produces almost 1000 “hits.” Cursory review of the first half of these, ranked by “relevance,” reveals that at least 200 are direct challenges to the legality of various aspects of the ACA, or to key administrative rules implementing the ACA (such as the rule allowing federal exchanges to pay premium subsidies). Some of these counts are multiple decisions in a single case, so the total number of distinct cases may be fewer than 200.
2.
Examples not mentioned in text include: requiring Congressional employees to purchase their insurance through the small-group exchange in D.C.; the constitutionality of the Independent Payment Advisory Board (which the Obama Administration so far has not even initiated); whether state employers must pay the transitional reinsurance fee; and temporarily delaying the “employer mandate” or other ACA provisions. See T.Jost, “Implementing Health Reform: ACA Litigation Beyond King V. Burwell,”Health AffairsBlog, June 23, 2015, available at <http://healthaffairs.org/blog/2015/06/23/implementing-health-reform-aca-litigation-beyond-king-vburwell/> (last visited October 18, 2016).
3.
For a supportive view of these challenges, see JoshBlackman, Unraveled: Obamacare, Religious Liberty, and Executive Power (New York: Cambridge Univ. Press, 2016).
4.
Burwell v. Hobby Lobby, 573 U.S. ___, 134 S. Ct. 2751 (2014).
5.
Zubik v. Burwell, 578 U. S. ____ (2016). The Court encouraged the parties to find a resolution that satisfies concerns on both sides, but it remains unclear whether that is feasible. Justice Scalia's unexpected death may have contributed to the Court's deciding not to resolve the issue, even after the case was briefed and argued on the merits.
6.
Ohio v. United States, 2016 U.S. Dist. LEXIS 473 (S.D. Ohio 2016).
7.
United States House of Representatives v. Burwell, (D.D.C. 2016).
