I am have always been a partial skeptic about Eskridge and Ferejohn’s “superstatute” theory—their groundbreaking argument that certain statutes are special because they transform and entrench norms beyond the rights embodied in the statute itself. Some of my resistance stems from how hard it has been for scholars to identify and reach consensus on which statutes, apart from Eskridge and Ferejohn’s paradigm example of the Civil Rights Act (which beautifully fits the theory), fit the bill. (The other part of my resistance comes from dissatisfaction with the doctrinal implications of their theory.)
But since last October, Eskridge and Ferejohn have been paramount in my mind and I may need to eat some crow. It has been impossible to watch the past eight months of debate and drama over the Affordable Care Act without thinking of superstatute theory. I have nearly finished an article making that case, but given this week’s events, I could not resist putting the idea out there sooner.
The ACA seems to clearly satisfy the threshold criteria of superstatute theory. It has survived (several) election cycles, including a change in Administration. It has survived more political contestation than any statute in modern memory, including not only the 50 times Congress tried to repeal it under Obama and the four other, more serious, attempts that we just saw; but also four years’ worth of sabotage by Congress to starve to death with lack of funding. It also has survived not one, but two, high profile showdowns in the U.S. Supreme Court that had the potential to take the entire statute down (NFIB and King), and other important challenges to discrete aspects of the law (e.g., Hobby Lobby). Continue reading →
On Monday, the Supreme Court decided another case that enhances ERISA’s deregulatory impact, Advocate Health Care Network v. Stapleton (holding that pension plans maintained by church-affiliated organizations, including hospitals, are exempt from ERISA’s pension protections as “church plans.”). Justice Sotomayor joined the majority opinion but wrote a concurring opinion lamenting its outcome and suggesting that Congress rethink ERISA — a suggestion Justices Thomas and Ginsburg have also made in the past. Abbe Gluck, Peter Jacobson, and I wrote the following on ERISA’s increasingly outsized influence and how it poses an impediment to health reform in the Health Affairs Blog on June 2, 2017.
From our post:
The Supreme Court has once again been called on to mediate the boundaries of a far-reaching, infamously complex, federal employee benefits law. And once again this law may have an important and unanticipated effect on health care.
The main goal of this law, the Employee Retirement Income Security Act of 1974 (ERISA), was to provide uniform, federal regulation of pensions and employee benefit plans (including health care). But the law has had a far more dramatic impact on health policy beyond what Congress ever contemplated. Because ERISA pushes aside state regulation of these plans, it has impeded the states’ ability to partner with the federal government to achieve key health policy goals. ERISA has also stymied some of Congress’s goals under the Affordable Care Act, and may prove an even greater obstacle to Republican efforts to return more authority over health policy to the states. Continue reading →
Thursday, November 12 Center Launch, Celebratory Reception with speaker Kathleen Sebelius — former Secretary, Health and Human Services 4:00–6:30pm Friday, November 13 Inaugural Conference 8:30am–5:00pm
Attendance to both events it free, but registration is required.
This conference marks the launch of the new Solomon Center for Health Policy and Law at Yale Law School. The Solomon Center is the first of its kind to focus on the governance, business, and practice of health care in the United States. This conference will mark the first under the Center, which will focus on bringing together leading experts and practitioners from the public and private sectors to address cutting-edge questions of health law and policy. Continue reading →
Solomon Center for Health Law and Policy at Yale Law School: Executive Director
The Yale Law School is delighted to announce the launch of the Solomon Center for Health Law and Policy, an exciting new Center at Yale Law School dedicated to training the next generation of health law leaders—academics, CEOS, lawyers, and government officials—and having an impact today on the most important health care issues.
The Solomon Center is seeking applications for the position of Executive Director. The Solomon Center coordinates a diverse program of activities that serve students and scholars at Yale and contribute both locally and internationally to the study of health law—with a particular focus on health governance, industry and the practice of medicine. Continue reading →
Yale Law School and so many others in the medical-legal community mourn the sudden passing of our colleague and friend, Robert (“Bo”) Burt. As many readers of this blog know, Bo was an early pioneer in thinking about doctor-patient relationships and the hardest questions about the end of life. He worked for years on the Soros Project, Death in America, and authored numerous books, including In the Whirlwind: God and Humanity in Conflict (Harvard Univ. Press, 2012); Death is That Man Taking Names: Intersections of American Medicine, Law and Culture (Univ. of California Press and the Milbank Memorial Fund, 2002); and Taking Care of Strangers: The Rule of Law in Doctor-Patient Relations (Free Press, 1979). His YLS obituary is here. He will be sorely missed and always remembered.
Next week the Court hears a major challenge to Obamacare, King v. Burwell. Readers of this blog know the case has deep importance for health care. But it also is a big case for law. I have previously detailed why the case is the big test for the Court’s current text-oriented statutory-interpretation philosophy known as textualism. Today, in Politico, I explain why the case is also fundamentally about state rights. The question is whether the Court’s many federalism-protecting doctrines–which, let’s not forget, the Court applied against the Government in the last Obamacare case–whether those federalism doctrines, like the Court’s textualist rules, are sufficiently legitimate and objective such they will apply regardless of which side they happen to support, even in a case as politicized as this one. After all, isn’t that the point of having a rule of law in the first place?
Much attention has been paid recently to the contradicting decisions issued on the Halbig and King cases, which challenged the Obamacare subsidies offered to individuals purchasing insurance on federal exchanges. In a piece for Politico Magazine, Abbe R. Gluck finds a weakness in the Halbig plaintiffs’ arguments, in their own words. As Gluck writes:
What’s less known, however, is that in the 2012 constitutional case, these same challengers filed briefs describing Obamacare to the court in precisely the way they now say the statute cannot possibly be read. Namely, they assumed that the subsidies were available on the federal exchanges and went so far as to argue that the entire statute could not function as written without the subsidies. That’s a far cry from their argument now that the statute makes crystal clear that Congress intended to deny subsidies on the federal exchanges.
I am not a fan of the “gotcha” flavor that some aspects of this case have taken on, but the challengers’ 2012 statements are relevant as a legal matter because what the government has to prove to win—as a matter of black-letter law under the Chevron doctrine—is that the statute is ambiguous. (Chevron says that federal courts defer to the relevant agency’s reading of the statute when a federal statute is unclear—here, that agency is the IRS.)
The challengers have spent more than a year arguing that no reasonable reader of text could construe the statute in any way other than denying federal subsidies to insurance purchasers on exchanges operated by the federal government. But what about their statements from 2012—statements then echoed by Justices Scalia, Kennedy, Thomas and Alito in their joint dissent to the Supreme Court’s ruling in the constituitional challenge, NFIB v. Sebelius?
You can read more, including the relevant passages from the NFIB v. Sebelius briefs, here.
I had hope to take a day off blogging about Halbig and King (the ObamaCare Subsidies cases), but I cannot allow another new, and inaccurate, narrative about ObamaCare to take hold. Over at Volokh, Ilya Somin argues that the holding in Halbig is not absurd because Congress uses statutory schemes all the time that try to incentivize states to administer federal law (and penalize them if they don’t). It is true we see schemes like that all the time–Medicaid is a prime example–but the insurance exchange design at issue in these cases is NOT one of them. This federalism argument was made before the D.C. Circuit and even Judge Griffith didn’t buy it in his ruling for the challengers. I tried to dispel this myth back in March, when I wrote the following on Balkanization. As I said there, this isn’t Medicaid—it’s the Clean Air Act.
As most readers know by now, two federal appeals courts on Tuesday reached the opposite conclusions about the validity of the critical financial subsidies on the ACA’s federal health insurance exchanges. The Fourth Circuit in Virginia upheld the subsidies—indicating the government had the better argument, but regardless applying the longstanding rule that when a statute is not clear, courts defer to the agency administering the statute (in this case, the IRS). The D.C. Circuit, however, ruled the other way, reading one provision of this massive and complex federal law out of context. That opinion not only misinterprets the statute—with enormous practical consequences—but also does a deep disservice to conservative jurists and lawyers who have spent the last 30 years arguing that text-based interpretation is sophisticated, not literalistic, and serves democracy.
The stakes are enormous: If the D.C. Circuit’s opinion ultimately carries the day, more than $36 billion dollars in financial relief will be denied to the approximately 7 million people expected to be insured with the help of this financial assistance. It also places Republicans in a real dilemma, especially as the election cycle heats up: The result, if the ruling stands, would be massive red-state/blue-state disparity, as millions of middle-class Americans are deprived in red states of access to medical care, because it is mostly the red states whose subsidies are now at issue.
As I wrote yesterday on Balkinzation, the opinion is terribly disappointing from a statutory interpretation perspective. It relies in part on irrelevant legislative history (from the HELP committee, whose bill wasn’t even the basis for these provisions–the Finance committee’s was) and gets it wrong anyway (as I argued here); it bends over backwards to come up with reasons why Congress might have intended this result (which we all know it certainly did not); and it attaches far too much significance to a line in the statute that expressly deems exchanges in the territories to be state exchanges and does not replicate the special deeming language for the federal exchanges. The territories language is boilerplate language used by Congress when talking about territories in statutes even beyond the ACA, and should have been attached no significance here.
The proponents of the Affordable Care Act (ACA) tax subsidies law suits (currently pending in both the D.C. and Fourth Circuits and which I have discussed here, here, here, and here) have seized on the Court’s recent decision in Utility Air Regulatory Group v. EPA—going so far as to file letters of supplemental authority with both courts highlighting the case as additional relevant authority for the subsidies suits. We should hope that the courts understand the ACA—and the specifics of the subsidies challenge—well enough to understand how different these cases are. There is also much in Utility Air, not mentioned by the challengers, that supports the Government’s position in the ACA case, and that should resonate with even the most textualist of judges.
The ACA challengers’ filings and blog posts highlight the part of Utility Air in which the Court refused to let EPA “tailor” the Clean Air Act’s explicit pollution thresholds (raising them higher than the statutory allowance because greenhouse gas emissions are much greater than conventional pollutants). They also highlight the Court’s invocation of the so-called “major questions” rule—the presumption that Congress does not delegate decisions to agencies of vast economic and political significance without making that delegation clear.
The subsidies challenges present completely different facts. The issue in those cases is whether a line in the ACA that provides that the subsidies shall be available to individuals enrolled in insurance “through an Exchange established by the State under section 1311,” clearly also excludes individuals enrolled through federally-operated exchanges. The challengers have made this argument because more than half of the states are using federal exchanges and denying the subsidies on those exchanges would be lethal to the ACA’s operation. Both HHS and the IRS have interpreted the statute as providing the subsidies on the insurance exchanges operated by both the state and the federal governments. Their interpretation is based on the fact that numerous other provisions of the statute, as elaborated in the government’s briefings, would be nonsense and superfluous under the challengers’ reading. One of many possible examples is ACA §36B(f), which provides that: Continue reading →
Abbe R. Gluck is joining Bill of Health as a regular contributor.
Abbe R. Gluck is a professor at Yale Law School. She joined Yale Law School in 2012, having previously served as an associate professor of law and the Milton Handler Fellow at Columbia Law School since January 2010. She is an expert in Congress and the political process, legislation, federalism, state and local government, civil procedure, and health law. She has extensive experience working as a lawyer in all levels of government. Prior to joining Columbia, Professor Gluck served in the administration of New Jersey Governor Jon Corzine as the special counsel and senior advisor to the New Jersey Attorney General. She also served in the administration of New York City Mayor Michael Bloomberg – as chief of staff and counsel to the Deputy Mayor for Health and Human Services, senior counsel in the New York City Office of Legal Counsel, and deputy special counsel to the New York City Charter Revision Commission. Prior to law school, she worked in the U.S. Senate for Senator Paul S. Sarbanes of Maryland.
Before returning to government work after law school, Professor Gluck was a litigation associate at Paul, Weiss, Rifkind, Wharton & Garrison. She earned B.A. degrees in English and International Studies from Yale University, summa cum laude, where she was editor-in-chief of The Yale Herald, and her J.D. from Yale Law School. Following law school, she clerked for then-Chief Judge Ralph K. Winter on the U.S. Court of Appeals for the Second Circuit, and for U.S. Supreme Court Justice Ruth Bader Ginsburg.Her recent writing has used federalism as lens through which to study both statutory interpretation theory and health law. Most recently, Professor Gluck conducted the most extensive empirical study in history about the realities of the congressional law-making process, the results of which were published in two articles in the Stanford Law Review.