The Supreme Court's next Obamacare case(s)

|The Volokh Conspiracy |

On Monday, the Supreme Court denied certiorari in Coons v. Lew, a constitutional challenge to provisions in the Affordable Care Act (ACA) creating the Independent Payment Advisory Board (IPAB), an independent federal agency charged with responsibility for controlling the growth of health-care costs by constraining the growth of Medicare.

IPAB is controversial, and potentially unconstitutional (as even fervent ACA advocates admit). Nonetheless, the denial of certiorari was to be expected. IPAB is not yet operational, so (as the U.S. Court of Appeals for the Ninth Circuit concluded) a challenge of this sort isn't ripe. If and when the IPAB is up and running—and begins making changes to Medicare that affect providers or beneficiaries—there will be ample time to consider the constitutionality of Congress's creation.

Alternatively, Congress could repeal or reform IPAB itself, as some have suggested. Given that the text of the ACA expressly limits Congress's ability to amend these portions of the law, such legislative action could itself prompt litigation and perhaps even High Court review.

The Court's denial of certiorari in the Coons case does not mean the justices won't revisit the ACA next term. Another cert petition is pending in Mayhew v. Burwell, Maine's challenge to the constitutionality of the ACA's maintenance of eligibility requirements for Medicaid. According to Maine (and supporting amici), the federal government's threat to withhold all Medicaid funding should Maine restrict Medicaid eligibility below pre-existing levels is unconstitutionally coercive and violates the Medicaid holding of NFIB v. Sebelius.

If, as oral argument in King v. Burwell suggested, some of the justices are interested in revisiting federalism concerns about the ACA, Mayhew is a potential vehicle. Indeed, although the U.S. Court of Appeals for the First Circuit found Maine's arguments unconvincing, Maine's position would get a boost should the the federal government prevail in King on federalism grounds.

Whatever the Court does in King—and whether or not it accepts certiorari in Mayhew—we have not seen the last of ACA litigation in the Supreme Court. For reasons I explain in this paper, the ACA creates a perfect storm for ongoing litigation. The substance of the cases may shift from larger constitutional questions to matters of administrative procedure and statutory interpretation, but the litigation will go on. Indeed, new cases are filed with some regularity, such as this case brought by Ohio Attorney General Mike DeWine challenging the imposition of taxes on state and local governments insurance plans to fund the Transitional Reinsurance Program.

The next wave of ACA litigation won't consist exclusively of suits brought by the law's critics. As the law's myriad provisions are implemented, new "glitches" will be discovered (like this one) and competing interest groups coming from various perspectives will challenge discretionary choices made by implementing agencies that don't go their way. Such cases will proliferate in the years to come. What this means is that King v. Burwell will not be the last ACA case the Supreme Court considers. To the contrary, Obamacare litigation is still just getting started.