Volume 108

The Affordable Care Act’s Litigation Decade

by Abbe R. Gluck, Mark Regan & Erica Turret

The ACA is the most challenged statute in American history. The first constitutional challenges were filed moments after the law was enacted. Ten years later, the ACA is still under attack, with a collective total of seven Supreme Court challenges in a decade. Along the way, the statute has been rebelled against by the states charged with implementing it, sabotaged by the second President to administer it, and financially starved by Congress. All of these events have fed a swirl of litigation and made for a story of unprecedented statutory resilience.

Everything about the ACA litigation—the stakes, the political and media attention, and even the number of hours of oral argument granted by the Supreme Court—has been outsized. The breadth of the more than 2,000 legal challenges has been staggering. The litigation reveals the extensive reach of the ACA into all areas of our economy and its effects far beyond healthcare. It shows the legal complexity of a federal law that does not rely solely on the federal government to administer it but relies on states and private actors as well. And it underscores the political and practical challenges of government intervention that aims to affect not only individual behavior but also private relationships, including those between employers and employees, and between patients and healthcare providers.

As the most significant healthcare legislation in recent American history, the ACA’s cases have, of course, shaped American healthcare. But they also have shaped constitutional law, federalism, statutory interpretation, administrative law, and our conceptualizations of the rights and duties of states and private actors charged with implementing federal statutes. The legal challenges also underscore deep and longstanding philosophical tensions within American healthcare itself. The norms of solidarity and community—that everyone should contribute so everyone can receive good healthcare—have long stood in counterpoise to the libertarian and market-based position that one gets only the healthcare one can pay for. Many of the challenges are, at bottom, about this normative tension.

And yet, litigation has transformed the ACA and the public’s understanding of it and its goals. Whereas the ACA came into the world as an uneasy political compromise between solidarity and market norms that frustrated some reformers wishing to see more, it has emerged from a decade of litigation much more closely aligned with the norms of solidarity and universal coverage than it was in 2010.

This Article documents in one place, for the first time, the sheer breadth and volume of the decade of litigation about the ACA, covering the period from the day the law was enacted, March 23, 2010, until April 2020. The relentless and multipronged legal attacks on the ACA, and the ACA’s survival and transformation through and in large part because of them, are an important part of the history of not only the ACA but the law of the decade itself.

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