Legal Expert: What the GOP Can Learn from Hillarycare

Democrats paved way for Republicans to defeat court challenges if Obamacare successfully repealed

by Brendan Kirby | Updated 27 Jul 2017 at 8:12 AM

If Republicans manage to overcome the odds and actually pass a bill repealing all or part of Obamacare, it is not difficult to imagine that a flood of lawsuits would follow.

Left to their normal course, those lawsuits could tie up provisions of the law for years and imperil its reforms. To prevent that, South Texas College of Law Houston professor Josh Blackman suggested that Republicans borrow a tactic from former first lady Hillary Clinton’s failed health care task force in the 1990s.

That reform effort, which never made it past Congress, contemplated requiring any legal challenges to a new law be heard by a three-judge panel in Washington — with a mandate that the Supreme Court review its rulings within a year.

Blackman said he came across the idea while researching his book on the Affordable Care Act, "Unraveled: Obamacare, Religious Liberty, and Executive Power." Having such a system in place would mean litigants could not scour the country for sympathetic courts to file lawsuits. It also would prevent a single district court judge from issuing a nationwide preliminary injunction blocking the law, as happened when President Donald Trump issued an executive order temporarily barring travelers from certain terrorism-compromised countries.

"It gets a quick resolution … It cuts back on forum shopping."

And it would prevent years of litigation snaking through the courts, first at multiple district courts and then at appellate courts before finally bubbling up to the Supreme Court, Blackman said.

"It gets a quick resolution … It cuts back on forum shopping," he said.

Blackman said he has pitched his idea to friends on Capitol Hill. But so far, no senator has taken it up and offered an amendment as the chamber debates proposals to repeal the Affordable Care Act. But Blackman said repeal authors could save themselves some of the headaches Obamacare has suffered.

"The time to add it is now," he said.

Advocates filed lawsuits all over the country challenging everything from Obamacare's Medicaid expansion to the legality of tax subsidies to a requirement that religious institutions provide birth control to their employees.

Some litigation still has not been resolved. For instance, a ruling that Congress never authorized payments to insurance companies to help lower-income consumers pay for out-of-pocket expenses remains pending before the D.C. Circuit Court of Appeals.

Blackman's plan would allow any Obamacare repeal to avoid that fate. All litigation would bypass the district court level and be heard by a single court in Washington. A district judge along with two appellate court judges would preside. In a twist of irony, the judge who would select the appeals judges would be Chief D.C. Circuit Judge Merrick Garland, the man President Barack Obama nominated for the Supreme Court — only to watch Republicans block the bid.

That three-judge structure is used to settle redistricting lawsuits and other election-law disputes. Blackman said it was the norm in legal challenges to laws for most of the 20th century. It fell out of favor in the 1970s after Congress gave the Supreme Court complete control of its docket. But there is no reason Congress could not bring it back, he said, adding that he increasingly believes it should be used for all lawsuits challenging newly adopted laws or executive orders.

Blackman said progressive activists already are plotting ways to stymie any law Congress may pass. New York Attorney General Eric Schneiderman, for instance, has vowed to try to block any effort to shut off funds for abortion provider Planned Parenthood.

Blackman mused that some states might sue to block a rollback of the Medicaid expansion. He said he was not entirely serious when he first offered that example. But he added that the more he thinks about it, the more he can envision litigation along those lines.

"Whatever joke I can come up with, they'll make actual lawsuits out of," he said.

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