Abstract

While King [v. Burwell] may be the last lawsuit potentially threatening a core feature of the ACA [Affordable Care Act] (at least for the time being) - and there will be few constitutional challenges of the sort seen in NFIB v. Sebelius - it was anything-but-the-end of ACA litigation. To the contrary, ACA lawsuits are certain to continue for years on end as the statute, the way it was enacted, and the way it is being implemented, create a perfect storm for continued litigation.

Continuing legal conflict creates uncertainty under the ACA. While health care reform remains in place, the precise contours of its implementation will be affected by continuing court battles over and under its various provisions. This uncertainty and flux is magnified by what can best be described as the "ad hoc" implementation of many ACA provisions. For good reasons or bad, federal agencies have found the need to depart from the relevant statutory language as the ACA has been implemented. This means the ACA, as implemented and experienced, is somewhat different from what Congress enacted. Compounding the uncertainty and flux, court decisions - including NFIB and King - have departed from the "most natural" reading of the relevant statutory provisions.

This abstract has been adapted from the author's introduction.

Document Type

Article

Publication Date

2016

Publication Information

20 Employee Rights and Employment Policy Journal 133-146 (2016)

Comments

Written for the Association of American Law Schools annual meeting (2016).

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