Anti-Injunction Act Bars Litigation of Affordable Care Act?

2022 Update

The updates below from 2012 to 2021 covered proceedings at the Supreme Court that were initiated various States and other entities to challenge portions of the Affordable Care Act.  As of 2022, the only portion of the Affordable Care Act that has changed significantly is the removal of the individual mandate.

2021 Update

Katie Keith at Health Affairs reported:

“On June 17, 2021, the Supreme Court issued its highly anticipated decision in California v. Texas. The Court, by a vote of 7-2, turned back a challenge to the Affordable Care Act (ACA), concluding that the plaintiffs did not have standing to challenge the constitutionality of the now penalty-less individual mandate. The decision was written by Justice Breyer while Justices Alito and Gorsuch dissented.

2020 Update

As David Gans from the Constitutional Accountability Center said in a November 2020 update,

Earlier this week, the Supreme Court heard oral argument in California v. Texas, the latest attempt in the long-running effort by conservatives to strike down the entire Affordable Care Act.  The two hours of questioning suggest that the Supreme Court is unlikely to take this radical step.  Both Chief Justice Roberts and Justice Brett Kavanaugh—who together with the Court’s three more liberal Justices could form a majority—repeatedly stated that it would be inappropriate to strike down the statute as a whole.  No other Justice offered any real rejoinder to their statements recognizing that the court’s role should be to salvage, not destroy, Congress’s handiwork.  A straightforward application of precedent, Chief Justice Roberts and Justice Kavanaugh stressed, points decisively in favor of saving the Affordable Care Act.  The Roberts Court is deeply conservative, but, at least for now, it seems unwilling to upend settled legal principles to strike down the ACA.

The linchpin of the latest attack on the Affordable Care Act is a radical revision of the doctrine of severability.   Severability is the legal principle that when a court finds a particular provision of a law unconstitutional, it should save, not destroy, the remainder of the statute.  The basic idea behind severability doctrine is that courts should not gratuitously invalidate constitutional parts of a law.  In California v. Texas, that is precisely what the plaintiffs are seeking…”

“…The Court’s other conservative Justices offered little in the way of pushback.  None of the Court’s most conservative Justices offered any reason why the Court should reach out to invalidate the entire ACA.  Indeed, even Justice Samuel Alito, who voted to invalidate the entire ACA in National Federation of Independent Business v. Sebelius, observed that it did not appear that the individual mandate was integral to the rest of the ACA.  As he put it, in an airplane construction metaphor, “the part has been taken out and the plane has not crashed.”  The silence of the Court’s most conservative Justices underscored just how weak the plaintiffs’ case in California v. Texas is.

The severability question in California v. Texas is an easy one.  Fortunately, a majority of the justices seemed to recognize that.   The Supreme Court should, once again, reject the efforts of conservatives to strike down the ACA…”

2012 Update

Today’s hearing at the Supreme Court began with a Court-appointed amicus curiae from attorney Robert Long.  An amicus curiae or friend of the court brief focused on whether the Court may leave PPACA in effect even if it determines that requiring all Americans to purchase health insurance or pay a penalty is unconstitutional.  This is referred to as leaving (or severing) the rest of PPACA from the provision  that is being litigated.  Second, the amicus curiae brief dealt with whether the Court may compel States to either comply with PPACA or lose Medicaid funding.

At the conclusion of today’s hearing Chief Justice Roberts stated, Mr. Long, you were invited by this Court to defend the proposition that the Anti-Injunction Act barred this litigation. You have ably carried out that responsibility, for which the Court is grateful.

Briefs have been submitted by organizations favoring reversal of PPACA on the severability issue, including:

Other organizations submitted briefs supporting severability, in other words the idea that the the Supreme Court strikes down the individual mandate that the rest of PPACA remains intact.  These include the Missouri Attorney General and the AARP.


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Michael F. Arrigo

Michael Arrigo, an expert witness, and healthcare executive, brings four decades of experience in the software, financial services, and healthcare industries. In 2000, Mr. Arrigo founded No World Borders, a healthcare data, regulations, and economics firm with clients in the pharmaceutical, medical device, hospital, surgical center, physician group, diagnostic imaging, genetic testing, health I.T., and health insurance markets. His expertise spans the federal health programs Medicare and Medicaid and private insurance. He advises Medicare Advantage Organizations that provide health insurance under Part C of the Medicare Act. Mr. Arrigo serves as an expert witness regarding medical coding and billing, fraud damages, and electronic health record software for the U.S. Department of Justice. He has valued well over $1 billion in medical billings in personal injury liens, malpractice, and insurance fraud cases. The U.S. Court of Appeals considered Mr. Arrigo's opinion regarding loss amounts, vacating, and remanding sentencing in a fraud case. Mr. Arrigo provides expertise in the Medicare Secondary Payer Act, Medicare LCDs, anti-trust litigation, medical intellectual property and trade secrets, HIPAA privacy, health care electronic claim data Standards, physician compensation, Anti-Kickback Statute, Stark law, the Affordable Care Act, False Claims Act, and the ARRA HITECH Act. Arrigo advises investors on merger and acquisition (M&A) diligence in the healthcare industry on transactions cumulatively valued at over $1 billion. Mr. Arrigo spent over ten years in Silicon Valley software firms in roles from Product Manager to CEO. He was product manager for a leading-edge database technology joint venture that became commercialized as Microsoft SQL Server, Vice President of Marketing for a software company when it grew from under $2 million in revenue to a $50 million acquisition by a company now merged into Cincom Systems, hired by private equity investors to serve as Vice President of Marketing for a secure email software company until its acquisition and multi $million investor exit by a company now merged into Axway Software S.A. (Euronext: AXW.PA), and CEO of one of the first cloud-based billing software companies, licensing its technology to Citrix Systems (NASDAQ: CTXS). Later, before entering the healthcare industry, he joined Fortune 500 company Fidelity National Financial (NYSE: FNF) as a Vice President, overseeing eCommerce solutions for the mortgage banking industry. While serving as a Vice President at Fortune 500 company First American Financial (NYSE: FAF), he oversaw eCommerce and regulatory compliance technology initiatives for the top ten mortgage banks and led the Sarbanes Oxley Act Section 302 internal controls I.T. audit for the company, supporting Section 404 of the Sarbanes Oxley Act. Mr. Arrigo earned his Bachelor of Science in Business Administration from the University of Southern California. Before that, he studied computer science, statistics, and economics at the University of California, Irvine. His post-graduate studies include biomedical ethics at Harvard Medical School, biomedical informatics at Stanford Medical School, blockchain and crypto-economics at the Massachusetts Institute of Technology, and training as a Certified Professional Medical Auditor (CPMA). Mr. Arrigo is qualified to serve as a director due to his experience in healthcare data, regulations, and economics, his leadership roles in software and financial services public companies, and his healthcare M&A diligence and public company regulatory experience. Mr. Arrigo is quoted in The Wall Street Journal, Fortune Magazine, Kaiser Health News, Consumer Affairs, National Public Radio (NPR), NBC News Houston, USA Today / Milwaukee Journal Sentinel, Medical Economics, Capitol ForumThe Daily Beast, the Lund Report, Inside Higher Ed, New England Psychologist, and other press and media outlets. He authored a peer-reviewed article regarding clinical documentation quality to support accurate medical coding, billing, and good patient care, published by Healthcare Financial Management Association (HFMA) and published in Healthcare I.T. News. Mr. Arrigo serves as a member of the board of directors of a publicly traded company in the healthcare and data analytics industry, where his duties include: member, audit committee; chair, compensation committee; member, special committee.

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