Yasmine Halmane, Contributing Photographer
On Monday, faculty and students from Yale Law School discussed oral arguments in the Supreme Court case California v. Texas, which will be heard today and is one of many cases that have been filed to abolish the Affordable Care Act, also known as Obamacare.
The event’s speakers included Linda Greenhouse LAW ’78, the Joseph M. Goldstein Lecturer at Yale Law School, who began the discussion with an overview of California v. Texas. According to a brief issued by the Kaiser Family Foundation, a group of 18 states, led by Texas, is expected to challenge the ACA by arguing that the law’s individual mandate — which penalizes citizens who fail to maintain a minimum level of health insurance — is unconstitutional.
Greenhouse noted that the event brought together key players in the legal community who had previously worked on health care litigation: visiting lecturer in law Stuart Delery LAW ’93, visiting clinical lecturer in law Andrew Pincus ’77 and law professor Abbe Gluck ’96 LAW ’00.
“The three other speakers collectively, in my opinion, really are largely responsible for saving the Affordable Care Act in its many battles,” Greenhouse said.
Though the individual mandate had previously been upheld as a legal tax, the 2017 Tax Cuts and Jobs Act passed under the Trump administration decreased the mandate’s penalty to $0. Plaintiffs are expected to argue that this no longer constitutes a tax, rendering the individual mandate and the entire ACA unconstitutional.
According to Delery, challenges such as California v. Texas demonstrate the increasingly involved roles that courts have taken in the legislative process. He described today’s case as the latest “wave of assault” on the ACA.
“Litigation has become the last stage of the policy-making process,” Delery said. “Every significant thing the government does won’t stick unless [it] can be defended in court.”
Though oral arguments will be heard starting today, Greenhouse mentioned that a decision on the ACA may not be released until January. Panelists discussed how last Tuesday’s election and a new Biden administration could impact the pending case, with Delery suggesting that the presidential race may have been in part a “national referendum” on the ACA.
Pincus claimed that the ACA’s popularity with the American public may play a factor in the court’s decision.
“If you’re a justice that cares about how the court is perceived, getting rid of the ACA would look pretty much like the court doing what the electorate didn’t do,” Pincus said. “You could look at a vote for Biden as a vote to turn the page from trying to get rid of the ACA.”
Pincus pointed out that the ACA currently has support from many stakeholders in the medical system, including professional groups like the American Medical Association, as well as national patient organizations. Groups who campaign against the ACA do so on largely ideological bases, according to Pincus.
The outcome of today’s case will likely rest on the legal concept of severability, according to the New York Times. Supporters of the ACA argue that the legislation is “severable,” meaning that striking down one provision does not negate the remainder of the act. The opposing side’s argument, however, rests on the idea that the individual mandate’s unconstitutionality renders the entire ACA unconstitutional.
Gluck, who founded the Solomon Center for Health Law and Policy at Yale, also spoke at Monday’s event. Gluck co-authored a brief that will be included in today’s case. She wrote on the concept of severability in an essay published in October by the Yale Law Journal, arguing that Congress had already established the severability of the ACA.
“The 2017 Congress itself eliminated the penalty but left the rest of the ACA intact—leaving an explicitly enacted, text-based congressional indication for the rest of the statute to survive, expressed as clearly as it possibly could be by the continued existence of the ACA itself,” the essay states. “That should be the end of it.”
The confirmation of Justice Amy Coney Barrett to the court before the beginning of oral arguments for California v. Texas means that she will have a vote, according to the New York Times. This rules out the possibility of a deadlocked 4-4 court decision, the result that had previously been anticipated following the death of Justice Ruth Bader Ginsburg in September.
Last night’s event was co-sponsored by the American Constitution Society, a progressive legal organization, as well as the Solomon Center. Liam Gennari LAW ’22, who helped organize the event with ACS, spoke on the case’s importance to the law community at Yale and to the American public at large.
“Whether the ACA stands or falls, it is one of those cases that’s going to have an impact on a huge number of people,” Gennari said. “It’s important for members of the legal community to be aware of the arguments and whether they are reasonable or out of bounds. Ultimately, the court is going to be judged by the legal community, and law students are part of that community.”
The ACA was signed into law by President Barack Obama on March 23, 2010.
Isaac Yu | isaac.yu@yale.edu
Correction, Nov. 10: A previous version of this article stated that Gluck asked not to be quoted — Gluck did not make this request.