Columbia Law School Professors Submit Amicus Briefs in Health Care Challenge

New York, Jan. 14, 2012—Columbia Law School professors are the primary authors of two amicus briefs filed yesterday in connection with Department of Health and Human Services v. State of Florida, the challenge to the Affordable Care Act currently pending before the U.S. Supreme Court. Both briefs were filed on behalf of the petitioning agency, which advances the Obama administration’s position in the dispute.

One brief, filed by 104 health law professors, provides factual data about the health-care market which will be critical to the Court’s analysis. The other, filed by a group of constitutional and tax law professors, addresses the minimum coverage provision of the Affordable Care Act, arguing that it falls within the scope of Congress’s tax power.

Brief by health law professors

Abbe R. Gluck, Columbia's associate professor of law and Milton Handler fellow, is co-counsel on the brief filed by the health law professors. The lead counsel on that brief is Harvard law professor and former U.S. Solicitor General Charles Fried. The co-counsels are Gluck and Gregory G. Rapawy of Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C.

The health law professors’ brief marshals extensive research and data to illustrate that all U.S. citizens already participate in the market for health care. These facts are critical to one of the key issues in the case, namely, whether the Affordable Care Act compels individuals to enter a market in which they do not already participate. The brief is a “Brandeis brief,” meaning that rather than addressing doctrinal arguments, it aims to educate the Court about critical facts related to the legal question before it.

In the 58-page brief, the authors also argue that urgent medical costs are unpredictable and uncontrollable, and that patients are not ordinary consumers. The brief argues that most Americans are able to get essential and urgent health care services regardless of their ability to pay; and thus that the longstanding regulatory question for health law is not who is going to get health-care services, but rather how the services that everyone already consumes will be financed.

“The Court is dealing with a very complicated statute, in an extraordinarily complex field,” said Gluck. “To answer the questions before it, it must have a better understanding of the critical facts. This brief is an effort by a broad group of health law professors to provide that expert background information.”

The 104 amici on the health law brief are a diverse group, including some who favor market-based solutions to health policy issues and others who prefer government-based solutions.

Brief by constitutional and tax law professors

Gillian E. Metzger, Columbia's Stanley H. Fuld professor of law, and Trevor W. Morrison, Columbia's Isidor and Seville Sulzbacher professor of law, were co-counsel on a brief filed by a group of constitutional and tax law professors. Both are constitutional law professors. The counsel of record for the brief was Andrew J. Pincus of Mayer Brown LLP.

The brief addresses the minimum coverage provision of the Affordable Care Act, arguing that it falls within the scope of Congress's tax power. That tax power is very broad, the authors write, and encompasses measures that have a regulatory purpose, provided they serve the general welfare, raise some revenue, and do not violate an independent constitutional right or constitute an unapportioned direct tax.

The minimum coverage provision easily meets these requirements, they conclude. Moreover, they write, Congress should not be deemed to disavow reliance on the tax power absent clear evidence to that effect, and such evidence is lacking here. On the contrary, substantial evidence suggests that Congress intended the provision to be a tax, the brief argues.

“This brief rebuts an argument put forth at the appellate level in the health-care-act litigation,” said Metzger, “which is that Congress did not intend to invoke the tax power in the statute. For the Court to reach the conclusion that Congress intended to renounce a power, there must be clear evidence to that effect. But such clear evidence is simply not present here—in fact, there's a strong basis on which to conclude that Congress did intend to invoke the tax power.”

Joining Metzger and Morrison on the 34-page brief are Jack M. Balkin, Knight professor of constitutional law and the First Amendment at Yale Law School; Brian Galle, assistant professor of law at Boston College Law School; and Edward Kleinbard, professor of law, University of Southern California Gould School of Law.

For additional comment during evening, weekend, and holiday hours, contact Gillian Metzger, [email protected], and Abbe Gluck, [email protected].