How ACA case got to Supreme Court
Lawyer assigned to assess law’s impact saw 4 words that changed everything
The strange, twisted journey to the Supreme Court of a case that threatens to unravel President Barack Obama’s namesake heath care legislation began five years ago in the quiet of a Greenville, S.C., law office.
It was summer 2010. The Patient Protection and Affordable Care Act had been signed into law a few months before on March 23. Tom Christina had been asked by his firm to study it and assess its implications for clients.
Soft-spoken and affable, Christina specializes in employment benefits law for Ogletree Deakins, a firm with offices across the globe. He is Harvard-educated, politically conservative and once worked for the Reagan administration. As he read and then re-read the 900page law, he stumbled upon a phrase that puzzled him:
“Established by the state.”
It was buried in a subsection about the calculations of tax-credit subsidies designed to cut the cost of health insurance premiums and make them more affordable. Some states set up their own exchanges, but many had not. Those people relied on the federal ex-
change. But the federal exchange was not mentioned, he realized. If read literally, the law was saying that only people with state exchanges should get subsidies.
“I think it took more than one reading before I realized how all the pieces worked together,” Christina told the Chronicle.
But his discovery was hardly a blockbuster. At least not yet.
In December 2010, Christina was a panelist at a meeting of the American Enterprise Institute, a rightleaning think tank. Christina remembers the hot topic was finding legal challenges to the Affordable Care Act.
It was there that AEI scholar Michael Greve famously railed against the law: “This bastard has to be killed as a matter of political hygiene. I don’t care how this is done, whether it’s dismembered, whether we drive a stake through its heart, whether we tar and feather it and drive it out of town.”
Language of the law
Christina was more subdued with his Power Point presentation introducing the notion that the language of the law left out federal subsidies.
“It was not embraced immediately,” he recalled.
Still he wondered: What if the wording was not an oversight? Was it politically motivated, a way to browbeat states that did not set up exchanges? Over time, a possible litigation strategy began to brew.
The theory had blossomed from a “glitch” to a question of intent. Tom Miller, a resident Fellow at AEI who knew and liked Christina, was not initially convinced but was intrigued. He asked Christina to draft potential complaints.
“You’re preparing for a hypothetical,” Miller said in an interview about his thoughts at the time.
In April 2012, Miller called Sam Kazman, general counsel at the libertarian Competitive Enterprise Institute, to float some possibilities should the pending Supreme Court challenge to the Individual Mandate portion of the Affordable Care Act go against them.
On the morning of June 28, 2012, the Supreme Court spoke: In a 5-4 decision, it found that the requirement that most Americans obtain insurance or pay a penalty was constitutional because Congress had the power to levy taxes.
By afternoon, new challenges
were already underway, Miller said.
The early strategies on possible lawsuits using Christina’s theory were revealed in a series of emails that Miller supplied to the Chronicle. In early July, he wrote to Christina: “This lawsuit is fundamentally about ‘leverage’ and reversing ‘momentum.’ ”
Texas possible plaintiff
A few weeks later, another email from Miller was sent to Christina. Texas had emerged as a possible plaintiff: “I could use an update on where we might stand with the Texas plaintiffs. On Thursday afternoon, I will be speaking to most of the top state Republican legislative leaders from around the country, and it would be a great opportunity to promote where we are going on the legal front. Note below that Gov. Perry has signaled that the state will neither expand its Medicaid program nor implement its own exchange.”
But the clock was ticking and the pressure on to get a challenge filed quickly.
“If Texas can’t start moving in the next two weeks, lining up some Oklahomabased employer plaintiffs might be the most practical step,” Miller wrote to Christina on July 31.
In September 2012, the first suit attacking the validity of the federal subsidies was brought by the state of Oklahoma. Eight months later, another suit was filed that would become known as Halbig v. Burwell. Neither of those cases were moving quickly so a third was filed on Sept. 16, 2013, this one in Virginia.
The four plaintiffs were David King, Douglas Hurst, Brenda Levy and Rose Luck. Representing them is Michael Carvin, who three years before had taken the case against the Individual Mandate to the Supreme Court. The plaintiffs allege the subsidies lowered their health insurance costs and so they were not excused from the individual mandate.
In February 2014, a Virginia district court judge dismissed it. A month later, the decision was appealed to a three-judge panel of the 4th U.S. Circuit Court of Appeals.
Then on the same day, July 22, 2014, two different courts came to opposite conclusions: King v. Burwell was denied but Halbig v. Burwell succeeded.
“It was ripe for Supreme Court review because you have two circuits disagreeing with each other,” said Susan Feign Harris, a Houston lawyer with expertise in the Affordable Care Act.
In November 2014, the Supreme Court agreed to take King v. Burwell, and oral arguments were held in March. A ruling is expected by month’s end.
These days, Christina watches from the sidelines. He won’t make predictions.“It could be the Supreme Court could say, ‘Nice theory but ...’ ”
But he will say that even if the court finds for the White House, the challenges to the Affordable Care are probably not over. “I don’t think that’s necessarily the end of litigation.”