Abstract

Despite its passage a decade ago, the Affordable Care Act (ACA) remains a politically divisive law. These political divisions have long been on display in Congress, in the White House, and in states. A long-standing stalemate in Congress—where Republicans cannot repeal the law and Democrats cannot improve it—has emboldened efforts by the executive branch to act unilaterally to implement, or undermine, the ACA. In turn, the law's opponents and supporters have turned to the courts to promote their favored policy agendas through both broadside attacks on the law and targeted challenges to its implementation. Litigation has become politics pursued through other means. These challenges have often been brought, or opposed, by state attorneys general and governors, with red-state coalitions facing off against blue-state coalitions. ACA litigation has also been characterized by forum shopping, nationwide injunctions, and questions about the court as a truly adversarial forum. This article briefly reviews the history of ACA litigation, discusses these legal norms in the context of the historic health reform law, and considers the implications of this history and the changing judiciary for future health reform efforts.

The Political Context

Congress passed the Affordable Care Act (ACA) in 2010 without a single Republican vote. Although Democrats tried repeatedly to garner bipartisan support for the bill, the ACA was ultimately passed by the Democratic majorities in both chambers of Congress (McDonough 2011). During deliberations over the ACA, Democrats (joined by two independents) had a filibuster-proof majority in the US Senate and a significant majority in the US House of Representatives. Following a loss in a special election in early 2010, Democrats in the Senate lost their 60-vote majority, ultimately forcing the use of the budget reconciliation process to pass the final ACA. This unusual process of passing the ACA has had implications for legal challenges.

Backlash, which had already been fierce throughout the health reform debate, was swift and severe. In the lead-up to the 2010 midterm elections, Democratic members of Congress faced an onslaught of criticism, and ideological opposition to the ACA helped the Tea Party movement burgeon. Months after the ACA was enacted, the Democrats lost their majority in the House and nearly lost their majority in the Senate. One study found that 25 House Democrats lost their seats due entirely to their vote on the ACA (Nyhan et al. 2012).

Those were not the only losses. Democrats also lost governor's mansions and state houses across the country. Following the 2010 election, Democrats held fewer elected offices nationwide than at any time since the 1920s (Liasson 2016). These losses had an enduring impact because Republican state legislatures and governors redrew congressional and state legislative district boundaries following the 2010 decennial census. Thus, Democrats' losses in 2010, in part due to passage of the ACA, had a decade-long impact on the political control of many states across the country and the House. Democrats would not recapture control of the House until the 2018 elections.

In 2016, President Donald Trump was elected and the Democrats lost their majority in the Senate. This left Republicans in control of both chambers of Congress and the White House from 2017 through 2019. While Republicans had repeatedly voted for legislation repealing all or part of the ACA after 2010, Republican control of both houses of Congress and the White House in 2017 was considered the party's best chance to fulfill their long-standing pledge to “repeal and replace” the ACA.

Throughout 2017, Republicans attempted, but ultimately failed, to repeal major parts of the ACA. Congress could only muster the votes to zero out the ACA's individual responsibility penalty through the Tax Cuts and Jobs Act in late 2017 (Pub. L. No. 115-97, § 11081, 131 Stat. 2054). Republicans did not take up major efforts to repeal the ACA during 2018, and Democrats retook the majority of the House in 2019 as health care became a key issue on congressional midterm races.

Where has that left the ACA itself? Other than zeroing out the individual mandate penalty in 2017, Congress has made relatively minor changes to the ACA, and the vast majority of the original law remains in place. Congress has repealed some components, such as the CLASS Act and the Independent Payment Advisory Board. Congress has also eliminated some of the ACA's taxes, such as the health insurance tax, the medical device tax, and the Cadillac tax.

Beyond these changes, Congress has simply remained at a stalemate, where the Republicans cannot repeal the law and Democrats lack the votes necessary to improve the ACA or even to fix the law's drafting glitches. Even changes with bipartisan support have largely been viewed as nonstarters, and Congress has not been able to appropriate funds to implement the ACA after the initial $1 billion of implementation funds included in the original bill.

In the face of this stalemate, the power to implement, or undermine, the ACA shifted to the executive branch and increasingly to the courts. ACA opponents have brought numerous legal challenges to the ACA and its implementing regulations, including multiple high-profile cases before the Supreme Court. Perhaps frustrated by the lack of action in Congress, the Obama and Trump administrations both attempted to maximize their executive authority under the ACA. As both administrations tested the boundaries of their authority, ACA opponents and supporters turned to the courts to promote their favored policy agendas. Litigation has become an extension of politics pursued through other means.

A Long History of ACA Litigation

Having failed to stymie the passage of the ACA in Congress, Republican-led states and ACA opponents turned immediately to the courts, asking that the ACA be struck down. Lawsuits were filed within minutes of the law's passage, claiming that the ACA or various provisions of the ACA were unconstitutional, and they continue to this day.

Obama-Era Litigation

The first challenge to reach the Supreme Court, National Federation of Independent Business v. Sebelius (NFIB) (567 US 519 [2012]), was led by the attorney general of Florida joined by 25 other Republican attorneys general, the National Federation of Independent Businesses, and individual plaintiffs. In NFIB, the Supreme Court held that Congress lacked the authority to adopt the individual mandate under its interstate commerce authority but that Congress had validly exercised its power to tax individuals who failed to have coverage.

The Supreme Court further held that Congress did not have the authority to require states to participate in the ACA's Medicaid expansion, opening up another pathway for Republican-led states to resist the ACA by refusing to expand Medicaid. While Democratic-led states quickly expanded Medicaid, many Republican-led states balked. Even today, 14 states have yet to expand their Medicaid programs, and voters in an additional state (Nebraska) passed a referendum requiring Medicaid expansion that the state has yet to implement (Kaiser Family Foundation 2020).

The litigation did not stop there. Two other ACA-related challenges have been heard by the Supreme Court: Burwell v. Hobby Lobby Stores, Inc. (134 S. Ct. 2751 [2014]) and King v. Burwell (135 S. Ct. 2480 [2015]). In both cases, the plaintiffs did not directly attack the constitutionality of the ACA or one of its provisions but, rather, challenged the scope of a regulation adopted to implement the ACA. Both cases were brought by private parties rather than state attorneys general and were motivated by ideological opposition to the ACA. Relevant to King, for instance, libertarian advocates told red states they could effectively opt out of the ACA by refusing to establish their own marketplace (Cannon 2013).

In Hobby Lobby, for-profit companies challenged the applicability to them of the ACA's preventive services coverage regulations requiring employer and university health plans to cover contraceptives for their employees and students.1 The Supreme Court held that a regulatory accommodation adopted by the Obama administration for certain types of religious employers should extend to closely held for-profit corporations that object to contraceptive coverage for religious reasons. As discussed more below, lawsuits over the scope of the contraceptive mandate have continued; this issue was considered again by the Supreme Court in Zubik v. Burwell in 2016 (136 S. Ct. 1557) and will be before the Court once more during its 2019–20 term when it considers Little Sisters of the Poor v. Pennsylvania (No. 19-431).

In King, the plaintiffs challenged an Internal Revenue Service regulation that authorized the availability of premium tax credits in all states, regardless of whether the state opted for a state- or federally run Health Insurance Marketplace. The plaintiffs asserted that these subsidies were available only in states with a state-run marketplace. Had they won, most states and millions of people would have been left without access to subsidies. Chief Justice Roberts ultimately held that the federal marketplace could offer premium tax credits, bringing an end to the litigation.

At the end of his opinion in King, the Chief Justice noted that “in a democracy, the power to make the law rests with those chosen by the people. . . . We must respect the role of the Legislature, and take care not to undo what it has done. . . . Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them” (135 S. Ct. at 2496). This message was largely perceived as a warning to would-be challengers that the Supreme Court had no interest in striking down the ACA.

This warning has not been heeded. Litigation continued, although lawsuits generally focused more on Obama-administration interpretations in implementing regulations and guidance than on constitutional challenges. Legal challenges have addressed a wide range of issues, including the risk corridors program, the risk adjustment program, whether the administration could make cost-sharing reduction payments to insurers, nondiscrimination protections, and the decision to allow the continuation of non-ACA-compliant “grandmothered” health insurance plans.2 These lawsuits have had mixed results, and while none has proven fatal to the ACA, they have led to uncertainty for insurers, regulators, and consumers alike. These challenges have also contributed to a sense that the ACA is not a legitimate law and have undermined public confidence in the ACA.

One of these lawsuits, seeking unpaid risk corridor payments, will be decided by the Supreme Court in 2020. The temporary risk corridors program was designed to help stabilize the ACA Marketplace, and insurers participated in the Marketplace in part due to the expectation that full risk corridor payments would be made. The Centers for Medicare and Medicaid Services (CMS) later decided not to pay out more than what was received from insurers, while Congress passed a series of appropriation riders that prevented CMS from paying out more than it collected. Given high losses in the early years of the Marketplace, insurers were owed more than $12 billion in unpaid risk corridor payments. They sued, resulting in mixed results at the court of claims level and a loss at the federal circuit in a 2–1 decision (Moda Health Plan v. United States, 892 F.3d 1311 [Fed. Cir. 2018]). The Supreme Court agreed to review this decision, and a ruling is expected in 2020. The Supreme Court's decision could have significant implications that extend beyond the realm of the ACA and impact the future of public-private partnerships.

Trump-Era Litigation

The 2016 election ushered in a new era in ACA litigation. Beginning in 2017, the Trump administration acted to exploit or create ACA loopholes. President Trump issued executive orders directing federal regulators to undermine the ACA (Exec. Order No. 13765, 82 Fed. Reg. 8351 [Jan. 24, 2017]; Exec. Order No. 13813, 82 Fed. Reg. 48385 [Oct. 17, 2017]). In response to these executive orders and other directives from the White House, federal agencies rescinded Obama-era ACA interpretations while broadening or creating new exemptions to the ACA's consumer protections.

In response to an executive order, federal agencies issued new rules to dramatically expand the availability of short-term limited-duration health insurance and association health plans (Short-Term, Limited Duration Insurance, 83 Fed. Reg. 38212 [Aug. 3, 2018]; Definition of “Employer” under Section 3[5] of ERISA-Association Health Plans, 83 Fed. Reg. 28912 [June 21, 2018]). These plans are not part of the individual or small-group market single-risk pool and do not have to comply with all of the ACA's most significant consumer protections, making them attractive to younger, healthier people in search of lower premiums. This risk of adverse selection results in higher premiums for individuals with preexisting medical conditions and thus bigger federal outlays through higher Marketplace subsidies.

Both of these new rules have been challenged in court, with mixed results. Democratic attorneys general challenged the new rule on association health plans, arguing that the rule was inconsistent with the text and purpose of the Employee Retirement Income Security Act of 1974 and the ACA. The district court agreed, setting aside major portions of the Trump administration's rule (New York v. Department of Labor, 363 F. Supp. 3d 109 [D.D.C. 2019]). The new rule on short-term limited-duration health insurance was challenged by a coalition of safety-net health plans and patient advocates who asserted that the rule creates a loophole to the ACA that hurts patients with preexisting conditions. The district court disagreed, upholding the rule as a valid interpretation of federal law (Association for Community Affiliated Plans v. Department of Treasury, 392 F. Supp. 3d 22 [D.D.C. 2019]). Both decisions were appealed to the Court of Appeals for the D.C. Circuit.

The Trump administration has also encouraged states to consider new initiatives that seem to run afoul of federal law. Federal regulators have encouraged states to apply for state innovation waivers that may not comply with statutory requirements under section 1332 of the ACA, including requirements that state waiver programs provide coverage that is at least as comprehensive and affordable as ACA coverage and cover at least a comparable number of people. To date, only Georgia has sought such a broader waiver under the ACA, which CMS has not yet approved. CMS has approved novel waivers in the Medicaid context, allowing states to impose work requirements on Medicaid recipients. These waivers have so far been successfully challenged in court as inconsistent with the purpose of the Medicaid Act and thus unauthorized under federal law.

A separate lawsuit, known as the “Take Care” case, challenges a suite of changes made by the Trump administration to undermine the ACA. The plaintiffs—five cities and two individuals—challenge the administration's decision to stop making cost-sharing reduction payments to insurers, budget cuts for Marketplace advertising and in-person enrollment, a shortened open enrollment period, and the Department of Justice's refusal to defend the ACA in court. They argue that these changes, among others, violate the Constitution's requirement that the president “take care that the laws be faithfully executed” (U.S. Const. art. II, § 3) and that the administration is attempting to nullify the ACA through executive action.

Other Trump-era ACA lawsuits include challenges to new rules that would dramatically expand exemptions to the contraceptive mandate and the administration's decision to cease making cost-sharing reduction payments to insurers. Other non-ACA Trump administration health policy priorities—ranging from rules governing provider conscience protections to drug pricing transparency—have also been challenged in court.

In the meantime, all eyes are on Texas v. United States, a third global challenge to the ACA. In the Tax Cuts and Jobs Act, Congress—after multiple high-profile failed attempts to “repeal and replace” the ACA—set the penalty for failing to have health insurance at $0. Twenty Republican attorneys general and governors, later joined by two individuals in Texas, argue that the penaltyless mandate can no longer be upheld as a tax under NFIB. Because the mandate cannot be sustained as a tax, they argue that it is unconstitutional and should be struck down. They further argue that the mandate is so essential to the rest of the ACA that the entire law should be invalidated. As discussed more below, the district court agreed with the plaintiffs (Texas v. United States, 340 F. Supp. 3d 579 [N.D. Tex. 2018]) and the case was appealed to the Fifth Circuit. In December of 2019, the Fifth Circuit partially upheld the district court's decision that the mandate is now unconstitutional but remanded the case to the district court to reconsider how much of the rest of the ACA should also be invalidated (Texas v. United States, No. 19-10011, 2019 WL 6888446 [5th Cir. Dec. 18, 2019]). A coalition of states—led by the attorney general of California—and the House of Representatives appealed the Fifth Circuit's decision to the Supreme Court, which agreed to hear the appeal during its next term.

Legal Norms and the Role of the Judiciary

Courts have long been used as a means to promote preferred policy agendas. Thus, some tools used in ACA litigation, ranging from coalitions of state attorneys general to forum shopping, are by no means unique to the ACA. Litigation using these tools has been particularly apparent in other areas of law that raise important and divisive public policy issues, such as immigration or environmental law, and ACA litigation to some extent relies on precedents from these other areas of law. However, a long and sustained history of ACA litigation offers a unique case study in the political use of the courts, modern legal norms, and the role of the judiciary in resolving politically motivated challenges and mediating policy disagreements. This section discusses some of the hallmarks of ACA litigation in the context of ACA litigation writ large and the latest global challenge to the law, Texas v. United States.

Coalitions of Attorneys General

Challenges to the ACA and its implementation are regularly brought by state attorneys general: Republican during the Obama administration and Democratic during the Trump administration. State attorneys general also file amicus briefs in support of or in opposition to litigation and intervene as defendants where the Trump administration refuses to defend the law. Although some cases have been pursued by single state attorneys general, most have involved coalitions of states.

Further underscoring the political undertone of these challenges, some coalitions include governors of states where the attorney general is of a different party, and some attorneys general have left or joined coalitions following an election and change in party affiliation. The prominent role of states in bringing these lawsuits has led to questions about whether states, as employers or on the basis of other claimed injury, have standing to bring such challenges in the first place.

Coalitions of state attorneys general have played a particularly important role in some of the major ACA challenges that have come before the Supreme Court. The NFIB challenge was initially brought by 26 Republican attorneys general and defended in an amicus brief before the Supreme Court by 12 Democratic attorneys general and a governor (Brief for California and 12 Other States Supporting Respondents). Texas was initially brought by 20 Republican attorneys general and governors. Even before the Trump administration declined to defend major parts of the ACA, a coalition of 17 Democratic attorneys general, led by California, asked to intervene in Texas. Following the 2018 midterm elections, two Republican states withdrew as plaintiffs and four additional Democratic attorneys general asked to intervene, resulting in 18 Republican-represented states challenging the ACA and 21 Democratic-represented states defending the ACA.

Republican attorneys general in Texas and Wisconsin have been particularly active in challenging the ACA and Obama-era interpretations of the law. The attorney general of Texas has challenged the individual mandate, nondiscrimination regulations, and the health insurance tax. On the other end of the spectrum, Democratic attorneys general in California and New York have led coalitions to defend the ACA and challenged Trump-era efforts to undermine the law. These attorneys general have challenged recent rules to expand access to association health plans, exemptions to the contraceptive mandate, and a new provider conscience rule.

Even where state attorneys general are not directly involved in a lawsuit, many file amicus briefs in support of the plaintiffs or federal government. In Hobby Lobby, amicus briefs were filed by 21 Republican attorneys general in favor of the plaintiffs and 16 Democratic attorneys general in support of the government (Brief for Michigan, Ohio, and 18 Other States Supporting Respondents; Brief for Oklahoma Supporting Respondents; Brief for California and 15 Other States Supporting Petitioners). A similar pattern emerged in King, which was brought by private parties (not states), although two similar cases were filed by the attorneys general of Oklahoma and Indiana as state employers (Oklahoma ex rel. Pruitt v. Burwell, 51 F. Supp. 3d 1080 [E.D. Okla. 2014]; Indiana v. Internal Revenue Service, 38 F. Supp. 3d 1003 [S.D. Ind. 2014]). Before the Supreme Court, 6 Republican attorneys general filed an amicus brief in support of the plaintiffs compared to 23 Democratic attorneys general in support of the government (Brief for Oklahoma and 5 Other States Supporting Petitioners; Brief for the Commonwealth of Virginia and 22 Other States Supporting Respondents).

Forum Shopping

ACA challenges have also been characterized by forum shopping, where a plaintiff files a lawsuit in a certain jurisdiction where a judge is likely to issue a favorable ruling. This strategy has been used effectively by both supporters and opponents of the ACA.

Forum shopping has gone hand in hand with challenges brought by attorneys general. The Texas attorney general consistently files lawsuits in the northern district of Texas, resulting in many of these challenges being heard by Judge Reed O'Connor, who has uniformly found the ACA and its implementing regulations to be invalid. For years, Judge O'Connor was the only judge in the Wichita Falls division of the northern district, meaning challenges brought by Texas there were virtually guaranteed to be heard in his courtroom. Since 2015, nearly half of all challenges to the federal government brought by the Texas attorney general—on the ACA and beyond—have been heard by Judge O'Connor (Platoff 2018).

Given this, it is unsurprising that Judge O'Connor has played a central role in Texas, which was filed in the northern district by the Texas attorney general. In December 2018, Judge O'Connor issued an opinion agreeing with Texas and the other plaintiffs that the penaltyless individual mandate was unconstitutional and declared the entire ACA to be invalid. In December of 2019, the Fifth Circuit upheld Judge O'Connor's ruling that the mandate was unconstitutional but sent the case back to him to reconsider how much of the rest of the ACA should be invalidated with it. As noted above, the Supreme Court has agreed to review this decision.

ACA supporters also strategically file lawsuits in jurisdictions that are perceived to be sympathetic. Challenges have been brought in courts in California, the District of Columbia, Maryland, and New York. However, there is no analogue to the northern district of Texas for ACA supporters; said another way, there is no single court or judge that has heard a significant number of ACA challenges brought by supporters of the law.

Nationwide Injunctions

ACA litigation has also resulted in a number of nationwide injunctions to halt executive branch policies. Legal scholars have hotly debated the propriety of nationwide injunctions, which have been issued with increased frequency in recent years (Bray 2017; Malveaux 2017). Concerns about the effect of nationwide injunctions led the Department of Justice to issue new litigation guidelines criticizing this form of “overbroad injunctive relief” (Sessions 2018). Nationwide injunctions have been issued against both Obama- and Trump-era policies to implement the ACA. In other instances, courts have vacated all or parts of regulations, effectively invalidating federal rules nationwide.

Most of the nationwide injunctions issued against Obama-era policies were issued by Judge O'Connor. He enjoined parts of implementing regulations for ACA nondiscrimination protections and, more recently, the contraceptive mandate (Franciscan Alliance v. Burwell, 227 F. Supp. 3d 660 [N.D. Tex. 2016]; DeOtte v. Azar, 393 F. Supp. 3d 490 [N.D. Tex. 2019]). In Texas, Judge O'Connor was asked to issue a nationwide injunction but instead issued a declaratory judgment that the entire ACA was invalid. He did so in part because the Department of Justice intended to treat a declaratory judgment like a nationwide injunction (Keith 2018).

Other courts have enjoined Trump-era policies on expanded exemptions to the contraceptive mandate and vacated new rules on new association health plans. Courts in California and Pennsylvania issued nationwide injunctions against interim final rules and, later, final rules allowing employers with religious and moral objections to the contraceptive mandate to refuse compliance. On appeal, the Ninth Circuit limited the scope of the district court's nationwide injunction to only the represented plaintiff states, while the Third Circuit upheld a nationwide injunction against the rules in all 50 states (California v. Department of Health and Human Services, No. 19-15072 [9th Cir. 2019]; Pennsylvania v. Trump, 930 F.3d 543 [3rd Cir. 2019]). As noted above, the Supreme Court agreed to hear an appeal (filed by Little Sisters of the Poor and the Trump administration) of the Third Circuit's decision during the court's 2019–20 term.

Agreements between Plaintiffs and the Federal Government

An emerging issue under the Trump administration has been collusive litigation, where plaintiffs file a lawsuit against the federal government, which then agrees with the plaintiffs and refuses to defend the challenged action or regulation. This occurred in Texas, where the Trump administration, first in part and later in whole, agreed that the penaltyless individual mandate is unconstitutional and inseverable from the rest of the law.

In Texas, the Trump administration justified its decision not to defend the ACA by citing the Obama administration's decision not to defend the constitutionality of the Defense of Marriage Act. However, the Trump administration has taken collusive positions in additional, lesser known cases that have not turned on constitutional questions. In at least two additional cases—one on the contraceptive mandate and one on the ACA's nondiscrimination protections—the Trump administration has agreed with the plaintiffs that parts of Obama-era regulations should be invalidated. In those instances, the court has delayed or refused to allow outside parties to intervene in the litigation, leaving no party in the lawsuit to defend against or appeal anti-ACA decisions.

Implications for Future Health Reform Efforts

The ACA experience should inform future health reform efforts. The onslaught of litigation over the ACA, while not fatal to the law, has hindered its effectiveness and public confidence in the law and helped the ACA to remain salient as a highly partisan issue. Even 10 years after its enactment, the divide over the ACA between red states and blue states continues to be litigated in Texas, which remains the most significant ACA legal challenge to watch.

One irony of the ACA is that its attempt to minimize disruption and build on the current private health insurance system may have generated more legal questions and challenges than if Congress had more broadly leveraged a decidedly federal (and thus perhaps more legally sound program) like Medicare. The ACA also deferred a number of ACA implementation and design decisions to states by extending the existing cooperative federalist framework for regulating private health insurance and shared federal-state oversight of the Medicaid program. While perhaps politically expedient, this enabled dramatically different results in different states, making the ACA much more successful in states that embraced it than those that did not. This differential success rate may have contributed to ongoing legal challenges over the law.

Yet another lesson, although perhaps a dissatisfying one, is that partisan reform is very risky. The ACA, passed solely with Democratic support, remains a hyperpartisan issue even after 20 million people have gained coverage and the law has been baked into the nation's health care fabric over the past 10 years. Fervor over the ACA and the future of health care has shaped political control of state legislatures and an entire chamber of Congress, with Democrats swept out of power during the 2010 midterm elections due to anti-ACA sentiment, only to be swept back into power during the 2018 midterm elections due to opposition to Republican efforts to roll back the law's protections.

On the one hand, the past decade of legal and political battles over the ACA could underscore the need for truly bipartisan health care reforms. Congress has, for instance, still been able to achieve bipartisan agreement in other health care contexts such as the Medicare program and the Twenty-First Century Cures Act of 2016. These reforms enjoy widespread public support and have not faced the same legal or political challenges that the ACA has faced.

On the other hand, the decade of battles over the ACA could suggest that comprehensive bipartisan reform of our health care system, or even bipartisan efforts to expand further access to health coverage and care, is simply not possible now or in the foreseeable future. This recognition is animating some of the bolder proposals put forward by Democratic presidential candidates in 2020, such as Sen. Elizabeth Warren's (D-MA) explicit plans to leverage the budget reconciliation process—with its advantage of only needing a majority of votes in the Senate—to advance Medicare buy-in and public option proposals.

As with the ACA, future health reform laws, especially partisan ones, may face legal challenges. These challenges might focus on the law's fundamental statutory scheme or more broadly take issue with implementation of such a law and limits on executive authority. Many big health policy advances, especially those being discussed in the lead-up to the 2020 presidential election, such as Medicare for All, would defer a significant degree of flexibility and implementing authority to federal agencies. To the extent that private parties or states take issue with implementation of a new federal health care law, lawsuits could follow. Moreover, even if reform were to be built on an established federal program like Medicare, opponents will likely come up with novel legal theories to challenge it, and courts may reach surprising results, as the Supreme Court did in limiting Medicaid expansion in NFIB. Challenges over the ACA have been creative, and politically motivated legal challenges will undoubtedly continue regardless of the type of reform advanced by Congress or a new administration.

For this reason alone, reformers should not ignore the Trump administration's reshaping of the federal judiciary. President Trump continues to appoint record numbers of judges to courts across the country (Wheeler 2019). Given the degree of health policy we are doing by litigation, it seems inevitable that these new judges will consider challenges over the ACA and future health reform efforts.

Notes

1.

Approximately 100 lawsuits were filed, about half by for-profit companies arguing that they should be granted an exception to the requirement and the other half by religious organizations protesting the notice requirements to claim an exception for nonprofits.

2.

“Grandmothered” plans are health plans that were issued after the ACA was enacted in 2010 but before the law's major reforms went into effect in 2014. These plans thus have to comply with some, but not all, of the ACA's most significant consumer protections, and they would have been made illegal in 2014 but were allowed to continue by administrative guidance. They are distinguished from “grandfathered” plans, which existed on the day the ACA was enacted and were allowed to continue under certain circumstances.

References

References
Bray, Samuel L.
2017
. “
Multiple Chancellors: Reforming the National Injunction
.”
Harvard Law Review
131
, no.
2
:
418
82
.
Cannon, Michael F.
2013
.
Fifty Vetoes: How States Can Stop the Obama Health Care Law
.
Washington, DC
:
Cato Institute
. www.cato.org/sites/cato.org/files/pubs/pdf/50-vetoes-white-paper_1.pdf.
Kaiser Family Foundation
.
2020
.
Status of State Medicaid Expansion Decisions: Interactive Map
.
January
10
. www.kff.org/medicaid/issue-brief/status-of-state-medicaid-expansion-decisions-interactive-map/.
Keith, Katie.
2018
. “
Judge Hears Oral Arguments in Texas v. United States
.”
Health Affairs Blog
,
September
10
. www.healthaffairs.org/do/10.1377/hblog20180910.861789/full/.
Liasson, Mara.
2016
. “
The Democratic Party Got Crushed during the Obama Presidency. Here's Why
.”
National Public Radio
,
March
4
. www.npr.org/2016/03/04/469052020/the-democratic-party-got-crushed-during-the-obama-presidency-heres-why.
Malveaux, Suzette M.
2017
. “
Class Actions, Civil Rights, and the National Injunction
.”
Harvard Law Review
131
:
56
64
. harvardlawreview.org/2017/12/class-actions-civil-rights-national-injunction/.
McDonough, John E.
2011
.
Inside National Health Reform
.
Berkeley
:
University of California Press
.
Nyhan, Brendan, McGhee, Eric, Sides, John, Masket, Seth, and Greene, Steven.
2012
. “
One Vote Out of Step? The Effects of Salient Roll Call Votes in the 2010 Election
.”
American Politics Research
40
, no.
5
:
844
79
.
Platoff, Emma.
2018
. “
By Gutting Obamacare, Judge Reed O'Connor Handed Texas a Win. It Wasn't the First Time
.”
Texas Tribune
,
December
19
. www.texastribune.org/2018/12/19/reed-oconnor-federal-judge-texas-obamacare-forum-shopping-ken-paxton/.
Sessions, Jeff.
2018
. “
Litigation Guidelines for Cases Presenting the Possibility of Nationwide Injunctions
.”
US Justice Department
,
September
13
. www.justice.gov/opa/press-release/file/1093881/download.
Wheeler, Russell.
2019
. “
Trump's Judicial Appointments Record at the August Recess: A Little Less than Meets the Eye
.”
Brookings
,
August
8
. www.brookings.edu/blog/fixgov/2019/08/08/trumps-judicial-appointments-record-at-the-august-recess-a-little-less-than-meets-the-eye/.