The Future of the Affordable Care Act

April 04, 2019

 

Last week, the Department of Justice surprised many by reversing its position on the Affordable Care Act—stating that it agrees with U.S. District Judge Reed O’Connor that the ACA is unconstitutional, and won’t defend the law. Judge O’Connor’s December 2018 decision in Texas v. United States held that because the tax penalty that enforced the individual mandate had been reduced to $0 in Congress’s 2017 tax reforms, the rest of the ACA could not stand. The House of Representatives, along with several states, has intervened in the case to defend the ACA. Joining host Jeffrey Rosen to break down the case and the legal and constitutional arguments on both sides are ACA experts Abbe Gluck of Yale University and Tom Miller of the American Enterprise Institute.

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PARTICIPANTS

Abbe Gluck is a Professor of Law and the founding Faculty Director of the Solomon Center for Health Law and Policy at Yale Law School. She is also Professor of Internal Medicine (General Medicine) at Yale Medical School, a Professor in the Institution for Social and Policy Studies, and directs the Yale Law School Medical Legal Partnership Program. She has served as co-counsel on several major health-law cases, including filing amicus briefs in Texas v. Azar, King v. Burwell, and the 2012 ACA challenge, NFIB v. Sebelius

Tom Miller is a Resident Fellow at the American Enterprise Institute, where he studies health care policy. He was previously a senior health economist for the Joint Economic Committee in Congress and was a Senior Health Policy Adviser to the John McCain Presidential Campaign. He is the co-author of the bestselling book Why Obamacare Is Wrong for America: How the New Health Care Law Drives Up Costs, Puts Government in Charge of Your Decisions, and Threatens Your Constitutional Rights (2011).

​​​​​​Jeffrey Rosen is the President and Chief Executive Officer of the National Constitution Center, the only institution in America chartered by Congress “to disseminate information about the United States Constitution on a nonpartisan basis.” 


Additional Resources


Our Interactive Constitution is the leading digital resource about the debates and text behind the greatest vision of human freedom in history, the U.S. Constitution. Here, scholars from across the legal and philosophical spectrum interact with each other to explore the meaning of each provision of our founding document. 

The Taxing Clause by Neil S. Siegel and Steven J. Willis

This episode was engineered by Kevin Kilbourne, edited by Greg Scheckler with assistance from Jackie McDermott, and produced by Jackie McDermott. Research was provided by Lana Ulrich, Jackie McDermott, and Megan Murphy.

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TRANSCRIPT:

This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.

Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen, president and CEO of the National Constitution Center, and welcome to We the People, a weekly show of constitutional debate. The National Constitution Center is a nonpartisan non-profit chartered by Congress to increase awareness and understanding of the Constitution among the American people. Today we look at yet another challenge to the constitutionality of the Affordable Care Act. In December 2018 a District Judge, Reed O'Connor, in a case called Texas vs. United States, struck down the entire Affordable Care Act as unconstitutional, finding that because the tax penalty that enforced the individual mandate had been eliminated by Congress in the 2017 tax reform the rest of the act could not stand. Last week the Department of Justice said it agrees with Judge O'Connor's ruling and will no longer defend the constitutionality of the Affordable Care Act. The House of Representatives has intervened to defend the law represented by former solicitor general Donald Verrilli. Helping us to understand this quickly evolving and important constitutional lawsuit and the future of the Affordable Care Act are two of America's leading experts about the Affordable Care Act and the Constitution. Abbe Gluck is Professor of Law and the Founding Faculty Director of the Solomon Center for Health, Law, and Policy at Yale Law School. She has served as co-counsel on several major health law cases, including filing amicus briefs in Texas against Azar, King versus Burwell and the 2012 challenge to the Affordable Care Act, NFIB vs. Sebelius. Abbe, thank-you so much for joining.

Abbe Gluck: [00:01:41] Thanks for having me.

Rosen: [00:01:43] And Tom Miller is Resident Fellow at the American Enterprise Institute where he studies healthcare policy. He was previously a Senior at Health Economist for the Joint Economic Committee and Congress and was a Senior Health Policy Advisor to the John McCain presidential campaign. He is co author of the best-selling book “Why Obamacare is Wrong for America.” Tom, it's great to have you with us.

Tom Miller: [00:02:04] Thank you, Jeff. I'll be serving as assigned counsel for the plaintiff's appellees. It's a dirty job. But someone has to do it today.

Rosen: [00:02:11] On behalf of the nation thank you for your service. Let us jump right into the case. Abbe, tell us what Judge O'Connor ruled in striking down the Affordable Care Act and why did he find that what once was a tax and was upheld by the Supreme Court in NFIB vs. Sebelius was no longer a tax and this saved the constitutionality of the Affordable Care Act.

Gluck: [00:02:37] Okay, so the case is kind of a wonky case. So it's important to break it down a little bit. What the Judge held were basically two things in two steps. First, he held that the mandate, the requirement that everybody goes out and get themselves insured, no longer can be thought of as a tax because Congress in 2017 eliminated the tax penalty that was associated with the mandate. That's step one. Step 2. He held that without that tax penalty, because we can't think about it as a tax in his view, the mandate is no longer constitutional. The reason he thought that, was that in 2012, the Supreme Court was asked to consider the constitutionality of the mandate and they were given two theories. One was that Congress had the power to enforce the mandate with a penalty under its power to regulate interstate commerce. The court as a majority did not buy that theory. And the second, which the Chief Justice did buy and which did save the mandate, was a theory that Congress has very broad power under the Taxing Clause and the mandate could be construed as a tax because of that penalty. So Judge O'Connor's reasoning was without the tax penalty, the mandate is no longer a tax. The mandate therefore has no constitutional basis and is invalid. But the critical thing, Jeff, and the reason the case is so important, getting so much attention, that he went one step further than that and he said that without the mandate the entire Affordable Care Act- the Medicaid expansion, the Medicare pharmaceutical reforms, and nutrition labeling requirements, the insurance reforms, all 2,000 pages of it -the whole thing had to go down with the ship. That's what makes the case so thought-provoking.

Rosen: [00:04:19] Thank you for that very clear and helpful summary. Tom, Abbe has said that there are two big parts of the ruling. One is that the tax is no longer a tax and therefore can't be upheld under the Taxing Clause and, second, that the whole law has to fall and that the taxing part is not severable. Let's start with the first part first at anything you like to would you like to say about Judge O'Conners ruling and then tell us do you think he was correct to hold that what was once a tax is no longer a tax, having been reduced to zero.

Miller: [00:04:52] Right, we will park the severability argument for later in the discussion. This has a complicated history and it does go back to the 2012 case, which was an unusual split ruling. But essentially you had an unconstitutional law, but for how Chief Justice Roberts came up with a saving reading of the Mandate which could be, in an alternative universe, seen as a tax. It had some difficulties, but he had about five provisions which by his reasoning would establish the mandate, or the shared responsibility payment, as a tax. What Judge O'Connor did in threading the needle very narrowly was he went through those criterias to what it made the individual mandate a tax in NFIB v. Sebelius, and said that no longer was the case after the 2017 Congressional legislation in the Tax Cuts and Jobs Act, and that involved the fact that there were no longer money being paid into the treasury by taxpayers. There's a lesser argument that in way future years some trickles in on amended returns, but that's not in the same tax year that's required. It didn't yield the essential features of a tax by producing at least some revenue to the government. So when you strip away the tax rationale for the individual mandate, you're left with what Judge O'Connor found was the other part of the law as written, there was a two part element to the mandate.This how it was structured in the law: there was one that actually required as a regulatory command individuals, except for those with special exemptions, from having to comply with the mandate. And then in a second provision, there was also this penalty through the tax codes. So just because you took away the penalty through the tax code, there is still a law on the books which says people have to comply, at least most of them do, with whatever that mandate is and that's how he found the unconstitutionality after the Congressional legislation. Now how we interpret what that means for the rest of the law is for our further discussion, but on that aspect alone in a technical sense Judge O'Connor was correct, even though it's a very tightly reasons argument to get there

Rosen: [00:07:03] Abbe, do you think that on that point Judge O'Connor was correct and why or why not?

Gluck: [00:07:10] You know, I'm not a tax expert, my understanding on that is there's a pretty big division of authority about whether a provision that has a tax penalty written into the law, but has that Congress has the ability to reduce that down to zero and raise it back up again another later date, whether necessarily qualifies as being not a tax just because the penalty is reduced to zero. You know to my mind, the mandate wasn't being enforced. And I don't view that discussion as essential to the overall case. I think it's sort of,  she's never here nor there. But the fact of the matter is that Congress eliminated the penalty to 0. The mandate, is it enforced at this point? And the question is really whether the statute can function, or whether Congress intended it to function, without an enforceable mandate. But that said, you know my reading of the briefs is that there are some compelling arguments on both sides for whether or not a tax without a legislative penalty for now counts as a tax.

Rosen: [00:00:50] Tom, might those arguments be significant to Chief Justice Roberts and are the arguments that it still functions as a tax compelling enough that he might still uphold it as a tax the second time around?

Miller: [00:01:02] Well, Chief Justice Roberts has indicated a great degree of flexibility when it comes to preserving the Affordable Care Act that showed up also in the King vs. Burwell line of legislation, which is more of a statutory construction. If you use though the Chief's actual criteria put forth in his opinion of one, which was the controlling opinion, in order to have it both ways by saying that a mandate is a regulatory command is unconstitutiona,  but you could read it as a tax in order to make the rest of the law constitutional. He's lost that fig leaf. So, if you hold him to the same standards he used in determining whether this is a tax or not a tax,  we've got a lot of ambiguity in the history of the ACA because politically, was sold as not being a tax and it was argued at different times in the course of that earlier litigation sometimes was a tax, sometimes was a regulation. Sometimes it was both. So a lot of confusion on that part, but you could hold Roberts narrowly if he wants to  remain consistent with what he said before, that he has to say that to the extent there's some mandate still around, here's the law. CBO used to say people are going to follow it regardless of the penalty. They change their minds on that later on if we're in the world of 2012 or 2010, then you've got an unconstitutional issue here. The question is, what happens to the rest of the law?

Rosen: [00:00:21] So Abbe, I hear you both saying that although there are arguments on both sides, that's not essential because what's important is what happens to the rest of the law. So then let's turn to that question. And I think that leads to the question of severability. Tell us why severability is important and why you believe that the tax can be severed from the law and the rest of the law can be upheld.

Gluck: [00:00:20] Okay, that's great. I will. If I could just add one more thing as we're talking. You know, I think another thing that might happen is that the court might hold that this isn't a mandate at all anymore. So that the analysis about whether Congress is commanding Americans to go buy their insurance is not the same as it was in NFIB because it's not enforced with this tax penalty. So I think it's possible that we may get a totally different frame of analysis as the case goes through the courts just to put a pin in that discussion. That's Tom just concluded. But let me go onto severability. So, severability is an old Doctrine, a remedial doctrine that the Supreme Court and all federal courts apply, and it comes into effect when, usually, a court holds a particular provision of the statute is unconstitutional. So a court effectively deletes or takes out a small provision of a very large statute and the question then becomes can the rest of the statute stand? The legal test is typically Congressional intent. What would Congress have wanted had it known the court was going to take out the small piece of the statue? What makes this case unique is that here it was Congress, in 2017, that actually deleted or eliminated the part of the statute were talking about, that penalty, for the individual mandate. And so normally when we think this should be a pretty easy question. Congress eliminated the penalty. Congress left the rest of the Affordable Care Act standing. End of story. What is there for a court to guess about? And that's what I think most legal experts think the answer to this question is. What was surprising about the December ruling is that Judge O'Connor went a hundred eighty degrees in the other direction and held that forget that the 2017 Congress left the rest of the law standing, because back in 2010 when Congress enacted the Affordable Care Act, that Congress, a different Congress at a different time, thought that the mandate was essential to the functioning of the law at that time, the whole law had to go down. It's a surprising ruling because it ignores what the 2017 Congress actually did. And the Constitutional rule is a later Congress has plenary authority to overrule an abandoned change the acts of an earlier Congress. By focusing instead on the 2010 Congress, the Judge effectively elevated that Congress over the 2017 Congress. He really was not allowed to do that. 

Rosen: [00:02:00] So Tom, Abbe just argued that what matters is the intention of the 2017 Congress. In a piece in the New York Times co-written with Professor Jonathan Adler, she reinforced the same point and said this is an easy case: it was Congress, not a court, that eliminated the mandate penalty and left the rest of the statue in place. How can a court conclude that Congress never intended the rest of the statute to exist without an operational mandate, when it was the 2017 Congress itself that decided it was fine to eliminate the penalty and leave the rest of the law intact? What is your response to her arguments about severability?

Miller: [00:02:36] The long and short of it is the 2017 Congress did not have the power that it exercised in a reconciliation piece of legislation to do anything other than eliminate the tax penalty. You have to understand the nature of what Congress can and cannot do. We can impute to Congress actions it did not take. So, we are left with on the statutory books as a part of the textual law still in the U.S. Code what the 2010 Congress said was its intent and what it thought of the individual mandate. In its additional findings, when I was trying to bolster the Constitutional case for a regulatory mandate by saying it was essential to the functioning of certain aspects of the rest of the law, the 2017 Congress was not able to change that and did not change that. It had no power within the limits of the 60-vote Senate rules for reconciliation legislation to be able to do that. So Congress is silent on the issue. Many members of Congress might have wanted that to be otherwise. But there's nothing that was actually done to change the written law. Congress is open for business everyday back then, and now, and it could vote if it chose to do so to change its past findings, but it is not done so thus far. It hasn't even said “we're sorry, we made a mistake, we were wrong about how the mandate actually operated.” So we are left with what the past Congress said was the law and the current Congress, or the recent Congress, did not change in any way now. Beyond that, I would say we've got a little too far in terms of how far those findings go in taking down the entire law because if you look at the language used in that section of the 2010 ACA, it only related to several other regulatory provisions being essential to the functioning of the law. In the context of having an individual mandate and taking down the entire law is a much broader reach, which even the four dissenters in the 2012 NFIB v. Sebelius case played a little fast and loose in terms of how they got there, without necessarily have the underpinnings for it. We'll talk about that in a moment. But essentially, some harm some foul, but not a large change as Abbe is suggesting.

Rosen: [00:00:05] Abbe, in your op-ed you wrote that Justice Clarence Thomas has opined that the kind of hypothesizing analysis on which Justice O'Connor relied is inappropriate, Congress's attentions do not count unless they're enshrined in a text that made it through the constitutional processes of bicameralism and presentment, as everyone agrees the 2017 tax bill did. Tell us more about why you think that the text of the 2017 bill clearly makes clear congress's intention to keep the ACA and why you don't believe that a textualist Justice, like Justice Thomas, would agree with Judge O'Connor.

Gluck: [00:00:37] Yeah, there are two pieces of this. First of all, just to direct anwer your question directly, usually what happens in a severability case is a court takes out the offending provision and then the court has to guess if Congress would have left the rest of the statute standing. That's the question, the only question, and in this case Congress took it out and Congress left it standing. Congress acts by its vote. So, I respectfully disagree with Tom about the whole idea that Congress really told us nothing and we can't know what was going on. I mean, first of all, Congress did say something about whether thought it was wrong in 2010 about how essential the mandate penalty was. It said something by eliminating it. Congress speaks with this legislation. Second, federal courts don't interpret statutes in terms of losers history,  we call it. Right, you don't look and say well they didn't have the votes but they really wished they could have repealed the Affordable Care Act. We know from watching 2017, the whole year over and over again, that they did not have the votes to repeal the law or anything more than they actually did. For a court to come in and say this told us nothing about Congress's intent the fact they did something little because they couldn't get more than 50 votes so they had you the reconciliation provision, that doesn't tell us anything and we should then go ahead and strike down the whole law, which Congress majority of which did not have the votes to do for 2017. You know, that might be an unconstitutional usurpation of legislative authority by a court and it's very important and significant. And to say one other thing about this, is to say that well 2017 Congress somehow really was trying to stick a time bomb and the statute by repealing the Mandate penalty so a court would blow it up. That's to make an assumption that federal courts are not allowed to make. They're not allowed to assume that Congress legislates cynically, stupidly, unreasonably, and unconstitutionally. They're supposed to give Congress the benefit of the doubt and assume that Congress is reasonable in making its decisions. Especially when Congress, as it was here had actual studies, as Tom referenced, the Congressional Budget Office studies to back it up. The Congressional Budget Office changed its tune. It said, you know actually, we thought back in 2010 the law couldn't be stable without this mandate penalty and now I'm in 2017 and might not function as well as we wanted, but it still functions relatively stabley and is worth keeping it. And so Congress acted with data. I don't see how there's any room for a court to go beyond what Congress did.

Rosen: [00:03:13] Tom, your response to these arguments that Congress did explicitly consider this question in 2017 and made its intentions clear?

Miller: [00:03:20] Oh, no, I think it's always good to assume that Congress does  legislate stupidly. Although we can't assert to that in court, nevertheless, Congress did what it did and it didn't do anything else. The main motivating factor if you look behind the Tax Cuts and Jobs Act was in order to get a revenue plug and offset in order to pass the law. And that's what drove that forward, rather than any deep thoughts about the ACA in either direction. The Congressional Budget Office was still calculating that a number of people would not take up coverage in the absence of the tax penalty and only the regulatory mandate, but some people would. So it's a matter of degree on that front now. Now, on the larger issue of severability. I agree that the courts have most of the time, more or less consistently with some hedges, said that the question is would the law function without this provision in it and then would Congress have passed it? Well, Congress would always want a law to survive regardless of what's left of it. So that's not that much of a barrier and the question is functionality. The issue is are the other regulatory Provisions functional? In the absence of the individual mandate the old story in a Congress of 2010 and the defense of the ACA in 2012 and 2015 and until this lawsuit was brought, probably even up to then, was that it was absolutely necessary to have an individual mandate to provide a offsetting cost and other ways to get other people to pay for this in order to have these regulatory provisions, such as guaranteed-issue and adjusted community rating. That's been embedded in old briefs, which everybody has changed their positions on, as well as the views of the the justices. Now, if someone wants to say black is white and white as you know, black is white and white is black and it's all reversed in a time capsule, you can try that but I would least that like that folks own up to the inconsistencies in doing 180 degree reversals on both sides in this case.

Rosen: [00:05:20] Abbe, you wrote in your piece with Jonathan Adler, if the Fifth Circuit were reverses Judge O'Connor, we think it unlikely the Supreme Court will take the case. If the Fifth Circuit upholds the ruling, we're skeptical that a majority of the Court would sustain this weak analysis. Can you tell us how many votes on the court you think that the analysis on severability might get?

Gluck: [00:05:44] Yeah, let me put this in some context here. So what makes this case different from some of the previous Affordable Care Act challenges is that it's really the first one where there hasn't been a blue-red divide on the legal argumentation. So in the previous cases, notably Jonathan Adler, you know my kids still drive by those Jonathan Adler furniture stores and say “Jonathan Adler, your Nemesis”, so they go back in 2015 and they say “he has a store mom! You don't have a store!” So, you know Jonathan Adler and I went on our opposite sides of these Affordable Care Act cases for years and our brief is not the only one in which people who formerly disagreed are agreeing. I think yesterday was an extraordinary day of amicus brief filing .Quite surprising, in fact, we saw two Republican Attorneys, General Montano in Ohio file an extremely  powerful brief against the administration's position. We also saw another brief by both Walter Dellinger and Doug Laycock, a Republican and Democrat, saying that the parties had no right to bring the lawsuit and we saw still another brief filed by Kevin Walsh, Jon Bramnick, and Mike McConnell ,three well-known Republicans, are doing against this lawsuit as well. So I want to put that in context. The reason it's important to put it in context is that it changes the framework for this case, it is not as political, viewed on the merits, as is the Affordable Care Act or Good Statute, is the Affordable Care Act as a whole unconstitutional. It's a case about what a court's role is when Congress takes a provision out. I think it's important to understand. I think all of this de-politicizing of the statute hopefully will give the Fifth Circuit room to apply what is very subtle severability law. This is not a controversial doctrine. There are a lot of controversial statutory interpretation doctrines in the Supreme Court. I teach a whole year of them at Yale Law School, but this is not one of them. So, I think if the Fifth Circuit reverses, we're not going to get the case taken up in part because I think that Justice Thomas has gone on record with the severability views. As you say to Jeff the brief yesterday that was filed by Kevin Walsh pretty much, you know, tags onto Justice Thomas's view of severability. The brief filed by the Ohio and Montana Attorney Generals is the Justice Scalia's view on severability. Roberts and Kavanaugh are statutory interpretation guys. They apply the subtle doctrines and a lot of these cases Justice Kavanaugh has made several statements about severability, including a Harvard Law Review article in a previous concurrence in which he said Courts should be very careful about severing. I think the big questionmarks are Alito and Gorsuch. I think that we don't really know so much about what they think about severability and I think it would be something if they were ruling was something like six three or seven two, it would be quite interesting.

Rosen: [00:00:33] Tom, Abbe says it could be 6 to 3 or 7 to 2 against the administration on severability. Do you agree or disagree?

Miller: [00:00:40] I think the administration had a stronger case before they changed their position a few days ago with some prodding from the White House. The President hasn't been able to create bipartisanship where it had previously didn't exist in a number of areas, including in this one. It appears as the race to the editorial pages by my former allies continues on. There's a narrow case for going back to what would be a different version of bipartisanship, the 2012 briefing in NFIV v. Sebelius, where the Obama Justice Department also agreed with the position that in the event that the individual mandate was unconstitutional, you would also have to take down the guaranteed-issue and adjusted community rating aspects. That's why the court had to bring in a third-party lawyer to make the argument for not  going that far. I think that Abbe's forecast is of the likely voting by the judges is close. I don't think that Justice Thomas, having already walked the plank rather aggressively in the 2012 case, would necessarily walk back from that, but certainly Kavanaugh, based upon his decisions and opinions as an Appellate Judge, indicate a degree of skepticism about pushing too far in unraveling statutes as opposed to saving most of them. I think we know where the Chief is. So if this gets to the Supreme Court, a 6-3 ruling on not going to take down the entire Affordable Care Act is certainly in the cards. It's more questionable as to whether or not the other regulatory provisions would go anywhere in the changed context of this being nine years after, it'll be ten years after the law was written and seven after itwas implemented, the idea of unraveling everything and figuring out a way to put humpty dumpty back together by itself is enough to make Justices avert their eyes from going in that direction. So in all likelihood, the best case for the plaintiff appellees is probably to just have a ruling that whatever vestigial regulatory individual mandate remains is also unconstitutional. Let's go home everybody and that much has changed. We'll see what happens in the 5th Circuit along the way first.

Rosen: [00:00:32] Fascinating. You heard it here first We the People listeners: a bipartisan agreement that if the Supreme Court takes the case it could be a lopsided ruling against the administration on the question of severability. That leads to the question of whether the Court will take the case at all which requires us to discuss the wonky doctrine of standing. Abbe, what is the House's role in the lawsuit? Does it have standing to bring the lawsuit?

Gluck: [00:00:02] So let me break that down. So, the Supreme Court will only take the case if there are four votes to hear the case. Based on our previous discussion just now about the projected vote, if the Fifth Circuit reverses O'Connor and keeps the rest of the law intact, I think it's a good chance that the Court just won't get into this fire. Why would it take the case just to affirm, if the Fifth Circuit does its job. If the Fifth Circuit does not apply the settled law of severability, I think the Supreme Court is going to have to take the case to set the record straight because the severability doctrine is a very important doctrine, when it comes to separation of powers through of the Court versus the role of the legislature. The standing dot point is a little different. So what the standing arguments are, are the arguments about who has authority to come in here and bring this lawsuit or intervene in this lawsuit? So on the one hand you've got these plaintiffs that are saying “we're injured, we have the authority to come in and bring this lawsuit and say that the whole Affordable Care Act is unconstitutional.” I think there there are some significant problems. There were some powerful briefs filed yesterday on this point. This is where you might actually get Justice Thomas. There are powerful arguments that say these States haven't actually been injured. In fact, they don't really have the necessary concrete injury because the mandate is not being enforced right now and there's no evidence that people are flocking to state Medicaid rolls or anything else to allow the States to come into court. There are a host of reefs that made that argument. So it's possible on the one hand that the Fifth Circuit could take the case and say we're not actually deciding anything about severability: these guys, these States don't have standing to even bring this case in the first place and throw it out. It's also possible this case could go through the Fifth Circuit and the Supreme Court could take that and say the same thing you asked about the House. The House is on the other side. The House is actually defending the law. The question there is whether the House has the ability, standing as an intervener to come in there and defend the law. There is a congressional statute that gives the House the authority to come in and defend the law when another- when DOJ is not. The district court seemed to agree that the House had that ability. The Fifth Circuit has allowed the House to intervene. It may be the case that someone comes in and says look, the House doesn't really have the proper position here to defend the law. You've also got, don't forget, you've got a lot of blue states also in the case as intervenors who are also defending the law. They've all come in because the administration stepped out.

Rosen: [00:02:37] Many thanks for disaggregating the various pieces of the standing question. Tom your thoughts on standing and do you agree or disagree with Abbe's analysis?

Miller: [00:02:46] Okay, I'll start with the standing and then we'll go back to the Fifth Circuit cert scenario. It's correct that the state AG's are the real defendants coming in as intervenors at a lower stage. There's continuing uncertainty as to when the House as a whole as an institutional plaintiff can get full status in a case to challenge an executive branch action. Certainly individual House members can't and and I think that's a little bit of a divided issue. It's not crucial to how this ends up in any case. The House gets to make its arguments. They'll make their briefs. But ultimately the state AG's have pulled most of the heavy action on this one. On this standing issue, notice Abbe focused almost exclusively on the states, the the Republican AG states, as whether or not they have standing. She did not say as much about the two individuals who are in the case as plaintiffs, although their arguments about their standing as to how strong it is, I think they skirt by with the bare minimum necessary. The AGs were able to line up to folks who will say on the record: we are going to follow the law, we believe In following the law and it's hurting us. That's just enough of an injury. It's not a great injury to say that basically they've been harmed by having to comply with the law, which they're not required to violate the law, and that that has made them by coverage they would not otherwise buy. That's going to get them just through that end of the court. Now there are downstream effects where standing can be dialed up or down. As to what that applies to other causes of action or arguments in the case, generally the history has been once you get in the door, it's hard to knock them out. Prudential standing is already waived in the lower courts on this case and as you climb the ladder, it gets harder and harder to have that type of scrutiny on standing that the the opponents of this case have hoped for. So what I think is probably going to happen in the Fifth Circuit is it's a tough call, but this is about the most conservative Circuit Court of Appeals you're going to find in the U.S. There are a lot of new Trump appointees on this and there's some politics involved in judicial decision making as I'm sure you're quite aware. I think there's a shot that the Republican AGs can win on the narrow point of not taking down the entire law, but just finding an unconstitutional problem and perhaps taking  down a couple of collateral Provisions in it. Even if they don't win on the first round with the three-judge panel, keep in mind that sometimes the boundary lines for en banc reversals have been stretched for pragmatic political reasons and that could take us into overtime in the Fifth Circuit. I do agree that if the Republican AG's lose in the Fifth Circuit, Supreme Court won't touch this one with a 10-foot pole and you'll have difficulty finding four votes for certiorari. On the other hand as long as you're still alive and you're punching in Court, you've got a chance to get defeated at a higher level and that's what we might be looking at by the time of June of 2020.

Rosen: [00:05:53] So just so I and the listeners understand your areas of agreement and disagreement, Abbe, is it your position that the bottom line is if the Affordable Care Act falls in the Fifth Circuit the Supreme Court will take the case and save it and if it stands then the Supreme Court won't take it or is there more to say about what might happen legally?

Gluck: [00:06:18] I think that's basically my view. I think that there's a chance the Supreme Court will take the case and say there's no standing and throw it out; sort of find a different way to throw the case out without you know reaffirming the whole Affordable Care Act if that's what it took to get some kind of consensus, but I think that's essentially my view.

Rosen: [00:06:41] And Tom is that essentially your view or not?

Miller: [00:06:44] Yeah, I mean never underestimate that if things are murky they'll once again go into overtime and have a therapeutic cleansing to once again reset the table and say, we're saying once again you don't get to win at this level, but we'll see what comes out of the Fifth Circuit. I think there's a chance that we'll see this before The Supreme Court though next year.

Rosen: [00:07:04] Then let me ask, are there any other constitutional challenges or defenses of the Affordable Care Act that we might see? Abbe you have written powerfully that the president's refusal to enforce the Affordable Care Act may violate his Take Care responsibilities under Article II. This  is from Vox: President Trump admits he's trying to kill Obamacare. That's illegal. That's the Vox headline, not yours. But it's your piece. And you say the president has a legal obligation to Take Care that the laws are faithfully executed and that his multi-front attack on the law violates that requirement. Tell us more about that argument and whether or how you think that might come before a court.

Gluck: [00:07:49] Sure, and just to sort of bridge the last case and this one, I would just say that when it comes to the Affordable Care Act it's really always dangerous to make predictions in general about anything. The statute has proved to be surprising at every level of adjudication and it's hard to make predictions about any of these cases. So I just want to get that out there. With respect to the Take Care arguments, this is actually the flip side. So in the last couple of years we have finally started to see instead of the sort of the relentless litigation attack against the Affordable Care Act, we've started to see some cases that are about defending the Affordable Care Act cases that say the statute isn't being allowed the function that it's supposed to because the executive branch is intentionally trying to strangle it. That is my argument. Trump from the day he got into office, he passed an executive order basically telling his administration to look for loopholes to the statute. He has passed a number of executive actions ranging from you know, pulling away funding for necessary navigators, people will help you get insured, to shortening the enrollment periods and making healthcare.gov not accessible to passing regulations including - some of which have now been come under scrutiny in the courts - that are- endeavoured to split the insurance market and allow more people to find their way out of the insurance market. Two relatively easy to understand examples are these two rules that allow people to say they're using short-term health insurance as a way of getting basically an exemption from the Affordable Care Act markets and another one that expands the exception for the so-called association health care plans. All of those are now under scrutiny in the courts. There have been some early decisions that are favorable to the Affordable Care Act and my argument is that at some point the president has to be held accountable for what is really intentional sabotage of the statute. Now before we let Tom come in and tell me why I'm wrong, what I will say is that I fully agree with those who believe that the Take Care Clause gives the president enormous discretion to enforce and set enforcement priorities. The text of the Take Care Clause however has a requirement of good faith in it. I think the clause contemplates that at the margins there are some cases in which the president is intentionally acting in bad faith to kill the law. He is not using his enforcement discretion with an eye towards sort of the greater operation of government but is trying to accomplish with executive authority what he can't accomplish legislatively. I think at the margin that is the case where the Take Care Clause is violated. I think this is that case at the margin. This is that unique case and there's- a case has been filed by some cities bringing these arguments and I'm really looking forward to seeing how they develop.

Rosen: [00:10:48] Tom now is the chance for you, as Abbe suggested; tell her why she's wrong if you think she is and also do you believe that it's a bad faith effort to enforce the law that violates the Constitution or not?

Miller: [00:11:00] It's a bit of a reach on Abbe's part. I'd like to hear her standing analysis. We don't have time for that; why suddenly standing is more permissive for these cities than it might be from the other side of the fence. The Take Care Clause; we haven't had an example of this actually being brought against the president. There's a reason for that. There's a wide range of executive discretion. As far as I can tell comments on Twitter have not yet been put into the official judicial record as the final position of an administration. Remember that the constitution requires that the laws be executed faithfully, but certainly not consistently and we've got a problem with consistent enforcement by this administration, but faithful is a higher hurdle. Almost all of this just begs the question: if there are illegalities going on they can be challenged and brought under the Administrative Procedures Act or on the merits of these various challenges in and of themselves without rising to a much more nebulous constitutional imprint, which has not yet been reached before. So I don't think we're going to get there and it's an interesting secondary diversion. But this is- there a lot of unique precedents in the Trump administration. This is one that they won't yet be able to cement. Remember that President Obama decided not to defend a congressional law, although he executed it, administered it until then, in the same way the administration with a lot of latitude and slack has still continued to enforce the Affordable Care Act with different interpretations as to what a very badly written and ambiguous law allows different administrations to read into it and push in either direction.

Rosen: [00:12:48] One more round on the Affordable Care Act and then closing arguments. Abbe, it was the Defense of Marriage Act that President Obama refused to defend but nevertheless enforced. Tell us about his record. There were Take Care arguments that he, by phasing in the implementation of the Affordable Care Act, was violating his Take Care responsibilities and to what degree do the Obama precedents bear on the Take Care challenges to President Trump?

Gluck: [00:13:13] So I think again we're talking about two different things here. So there is a Take Care argument and there's a duty to defend. So on the Obama Administration, there's a comparison for both, you are correct. So first there is, does the administration have a duty to defend duly enacted and constitutionally upheld federal law? The Obama Administration did not defend the Defense of Marriage Act and some comparisons have been made here to the Trump Administration decision not to step in and defend the Affordable Care Act. You know, the the basic legal argument is that the president in general has the duty to defend the law unless that law is viewed as you know, so unreasonable as to be widely out of step with constitutional understanding. So on the one hand it might have been the case that had Trump been the president when the Affordable Care Act was first enacted, perhaps the DOJ would have brought the individual mandate challenge all the way up to the court and said hey, this mandate's not constitutional. Once the court has found the mandate constitutional, for the president to refuse to defend the entire law, effectively bootstrapping the whole ACA's unconstitutional argument to severability, that's very different than saying I believe this one part of the law's unconstitutional. Now on the implementation, I think the comparison that is often made is to the immigration laws. So - and as you mentioned the Affordable Care Act - so the Obama Administration declined to enforce certain aspects of the immigration laws and delayed enforcement of some of the provisions of the Affordable Care Act as it was transitioning the statue into its new era. One critical difference, and I think it is the critical difference, and hereto there is bipartisan agreement; Randy Barnett who is one of the most well-known constitutional scholars who does not like the Affordable Care Act has written several times that the linchpin of the Take Care Clause is that a president cannot enforce a law or decline to enforce a law because he thinks it will smooth implementation; that's the argument Obama made about delaying parts of the Affordable Care Act; or because he is dealing with limited resources and has to mush his resources around in the most appropriate way. That's the immigration argument with Trump. The thing that is different is what Tom was referring to when he mentioned the Twitter comments, is that Trump has come out and said one way or another I'm going to kill it. We're going to find a way to kill the statute. I'm killing it. It's dead. It's over. There are hundreds of comments effectively to this regard where the president is saying, he's using his authority to undermine the ACA, not too smooth transition, not to move resources around. I think that is what makes this different. That's what makes this the outlier.

Rosen: [00:15:56] Tom last thoughts on the Obama presidency, whether they're coming back to haunt Democrats in their attacks on Trump and whether these Take Care challenges or any other challenges or defenses of the law might succeed.

Miller: [00:16:12] Well, I don't think the the Take Care challenges to the law are going to succeed. The courts are still going to cut a wide berth for a president, even a President Trump. These are political disputes. Keep in mind that the the volatility pattern of the president's Twitter feed and its consistency has a wide dispersal range. We've just seen in the last couple of days a switch from suddenly having a brand-new wonderful health care law to not touching it for another year and a half once people told him what the political consequences are. So that's background noise after all is said and done. Even if it is the executive in chief, um, I'm gonna stop there, but this is just kind of somewhat sidestream background noise, which ultimately is not going to be dispositive in court. These can be fought out through other political means and they have been and they will be.

Rosen: [00:17:04] Well it is time for closing arguments in this extremely Illuminating and unexpectedly bipartisan discussion in terms of some of your conclusions. Abbe, the first one is to you. Do you believe that the Affordable Care Act as amended in 2017 violates the Constitution and do you believe that the Supreme Court if it takes the case will uphold it?

Gluck: [00:17:31] You know, as I said, I do not think that the entire Affordable Care Act violates the Constitution. I think it's relatively irrelevant what the Court holds about whether the unenforceable mandate stands or falls without the penalty. I think the rest of the statute is unquestionably valid based on settled legal doctrine. I hope and expect that the Fifth Circuit will reverse the district court and we'll never get to the Supreme Court if it does I hope, and I would like to expect that the Supreme Court will also do the right thing in the end. I'm always an optimist about the law and the cross partisan ability of settled legal doctrine and I really hope that that holds out here.

Rosen: [00:18:10] Tom last word to you. Do you believe that the Affordable Care Act as amended in 2017 violates the Constitution and do you believe the Supreme Court if it takes the case will uphold it or not?

Miller: [00:18:21] There's a narrow path to a narrow finding of unconstitutionality with regard to the remaining regulatory components of the individual mandate. A court could be barely justified in making that finding. Courts are also very practical when it comes to severability. I have my issues with where severability law has evolved over time. It may not necessarily be a realistic view of trying to save every law regardless of how badly it's written, but that seems to be where the courts are most of the time. So at best you would have a narrow attachment to the older grounds which implicated a couple of other regulatory provisions. To do that after you know, a long time of all the reliance costs, the disruption, transition issues, it's just not imaginable that a court is going to do that, certainly at the Supreme Court level, and I think it's even difficult to see at the Fifth Circuit level, but we're still in court. There's still things going on. This has been a strange, long trip we've been on because this law should tell us something about how badly- how Congress writes legislation and then we have dysfunction in the legislative branch and the executive branch that we're threatening to try to bring it over to the judicial branch, and we'll probably stop short of that, but it might not be until June 2020 when we find out.

Rosen: [00:19:41] Thank you so much Abbe Gluck and Tom Miller for a nuanced, illuminating and surprisingly cross partisan discussion about the constitutionality of the Affordable Care Act and what the Supreme Court may do about it. You have vindicated the optimism of the We the People podcast, to paraphrase Abbe, that cross partisan constitutional debate can spread constitutional light. Abbe, Tom, thank you so much for joining.

Gluck: [00:20:06] Thank you Jeff.

Miller: [00:20:07] Thank you.

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