Monday, February 9, 2015


Professor Gluck, Federalism Scholars File Amicus Brief in King v. Burwell Case

With the Supreme Court set to hear oral arguments on the high-profile healthcare case King v. Burwell in March, Professor Abbe R. Gluck ’00 has joined with a group of prominent federalism scholars to defend the statutory language of the landmark Affordable Care Act (ACA) in a recently filed amicus brief.

The brief, filed January 28, 2015, specifically examines the federalism implications of the challengers’ argument, which would read the Affordable Care Act to deprive any state that has chosen to let the federal government run its insurance exchange of critical tax subsidies necessary to the healthcare statute’s functioning.

"The federalism issues in the case are incredibly important and haven’t received sufficient attention yet,” said Gluck, who is an expert on Congress, federalism, and health law. “The challengers’ reading would impose drastic consequences on the states — including the collapse of 34 state insurance markets — without anything close to the clear notice the Supreme Court has required in case after case when Congress intrudes on the states."

The Affordable Care Act allows states to choose whether to run their exchanges or allow the federal government to do it for them. Under the government’s interpretation, federal subsidies are available to eligible taxpayers in every state, regardless of whether the exchange is set up by an individual state or through the U.S. Department of Health and Human Services.

"The challengers’ reading would turn ObamaCare — a statute designed around the principle of state inclusion and flexibility — into the most draconian and unfriendly cooperative federalism program in history,” explained Gluck. “This Court has been extremely protective of the States in cooperative federalism programs,” she said. “This challenge poses what may be the biggest threat ever to the states, and so settled doctrine clearly counsels that it be rejected.”

In their examination of the statutory issues affecting the case, Gluck and other scholars named on the brief offer a more detailed examination than any other brief in the case of how the ACA’s textual provisions and structure support the reading that gives states a choice without penalty. The brief also compares the ACA to many other cooperative federalism statutes, some cited by the challengers as analogous, and concludes that this review clearly supports the government’s interpretation.

“And a comparison with other programs throughout the U.S. Code confirms that the ACA was a federal-state regulatory program intended to fully implement federal policy, not a conditional spending program in which Congress is willing to hinge the success of the federal program on implementation by the States,” concludes the brief. “There is nothing close to the certainty required for the kind of drastic intrusion that petitioners’ reading would impose upon the States.”

The amicus brief asks that the judgment of the appeals court, which previously ruled in favor of the government on this case, be affirmed.

The group of scholars who filed the brief includes Columbia Law School Professors Thomas Merrill and Gillian Metzger, and Nicholas Bagley, Assistant Professor of Law at the University of Michigan Law School.

A group of Yale Law students also provided research assistance with the brief, including Jeff Chen ’16, Sarah Esty ’16, Grace Hart ’16, Stephanie Krent ’16, Becca Lee ’16, Julian Polaris ’15, Reema Shah ’15, and Michael Shapiro ’16. Michael Ulrich, the YLS Senior Fellow in Health Law, provided additional support and research assistance.

Gluck has published several articles on the case already, and her work on the case has been widely cited.