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Wednesday, July 10, 2019


Abbe R. Gluck to Congress: Key Doctrine Upholding ACA is “Settled Law”

U.S. Congress

One day after an appeals court heard a case that could strike down the entire Affordable Care Act, Professor of Law and Faculty Director of the Solomon Center for Health Law and Policy Abbe R. Gluck ’00 testified before Congress as lawmakers grappled with the potential implications of the law being overturned.

That case, Texas v. Azar, was at the heart of Gluck’s July 10 testimony before the House Committee on Oversight and Reform. At issue is a district court’s 2018 ruling that the entire ACA must be struck down because Congress decreased the tax penalties connected to the individual mandate — the requirement that everyone carry health insurance — to zero, and in so doing rendered the mandate unconstitutional. The district court reasoned that because the Congress that enacted the ACA viewed the individual mandate provision as “essential” to the function of the law, the entire law must be struck down along with the individual mandate.

READ: Abbe Gluck's testimony for the House Committee on Oversight and Reform
WATCH: House Committee hearing including Gluck's testimony

Both liberal and conservative legal experts have questioned district court’s ruling and said it was unlikely to stand. In appeals court this week, however, two of the three judges hearing the case indicated that they could side with the lower court judge.

Gluck was one of two expert witness at the Congressional hearing, which the committee called to examine the Trump administration’s decision to join the plaintiffs arguing the whole ACA should be overturned. Gluck has followed the ACA since its inception, filed amicus briefs in all three of the major court cases challenging the law, and written more than 20 articles on the topic. Her expertise also includes Congress, federal courts and statutory interpretation — all issues fundamental to the Texas case.

In her testimony, Gluck said that the case has generated an unprecedented consensus among legal experts in opposing the district court decision. Even the ACA’s most prominent opponent recently joined Gluck in a brief supporting the law. That brief “says regardless of whether you think the ACA is good policy, regardless of what you think of the previous Supreme Court ACA decisions, there is no legal basis for the Texas challenge and in fact allowing it to go forward is destructive to congressional power and democratic legitimacy,” Gluck said. Asked by a committee member to underscore this point, Gluck said “I think one of the reasons you see this unprecedented consensus…is that this case goes to the power of Congress…Conservative legal scholars and liberal legal scholars alike value separation of power.”

Gluck explained that central to the Texas case is the “settled, non-political” legal doctrine of severability, which addresses what a court should do with a statute if it finds one part of that statute invalid. According to Gluck, the Texas court’s decision flouted the “unbroken Supreme Court precedent on severability,” and this uncontroversial doctrine prevents courts from usurping lawmaking power from Congress. Quoting Republican-appointed justices, Gluck explained that the doctrine rests on the presumption that courts should save, not destroy, a law, severing it “to the narrowest extent possible,” and that courts should leave the remainder of a law standing “unless it is evident that Congress would not have enacted the rest.”

Gluck also explained that it is settled law that when considering Congressional intent, courts must recognize “the constitutional authority of each Congress to do its own work and to change what came before.” According to this principle, privileging the intent of the 2010 Congress that enacted the ACA over the intent of the 2017 Congress that amended it is unconstitutional.

Sometimes the severability test can be difficult, Gluck said, “but this case is not difficult. The courts do not have to — and are absolutely not permitted to — guess whether Congress would have wanted the ACA to stand because Congress itself — not a court — eliminated a penalty and left the rest of the statute standing.”

By leaving the remainder of the ACA intact, Gluck added, the 2017 Congress made clear its intent that the law should remain in effect. By invalidating the ACA, she said, the court would “accomplish what the Congress could not in over two years of trying to repeal.”

While much of the hearing focused on the legal arguments around the ACA, it was also intended to gauge the impact the end of the ACA could have on the healthcare system and all Americans. To illustrate that impact, several patients shared their personal struggles in emotional testimony before the committee.

“The case is about more than the ACA: It is about separation of powers, the preservation of congressional authority, and the limits of judicial power,” Gluck testified. “It is also about enormous human and systemic consequences — tens of millions of Americans of all classes, demographics and ages, would lose the health care they now take for granted and may not even realize is dangerously at risk.”

A decision is expected from the court of appeals later this year, setting up a Supreme Court challenge ahead of the 2020 elections.

On Sept. 26 and 27, the Solomon Center for Health Law and Policy at Yale Law School and the Healthcare Transformation Institute at the University of Pennsylvania’s Perelman School of Medicine will cohost “The Affordable Care Act at 10,” a conference including Gluck, an interdisciplinary group of scholars, and leading players in the ACA’s passage and implementation.