eral government for further concessions. For example, Pennsylvania asked
the federal government to allow it to expand Medicaid by, among other
things, imposing a work requirement as a condition of Medicaid eligibility,
although it has now abandoned this effort and modified the request to include “work incentives” rather than a requirement.
19 Left unchecked, these
federal-state activities could usher in widespread policies that do away with
the essential ingredients of Medicaid coverage—provisions that Congress
included in the Medicaid Act to ensure that the program meets the needs of
low-income individuals and people with disabilities.
III. ROUND TWO: LITIGATION DOUBLES DOWN
Despite the NFIB Court’s decision upholding the constitutionality of the
ACA, litigation has continued full steam. Since the Court heard NFIB, more
than 100 federal cases have been filed; two cases (consolidated) were de-
cided by the Court during the 2013-14 Term.
20 With a couple of important
exceptions (discussed below), the vast majority of Round Two cases differ
from Round One because they seek to strike particular provisions of the
ACA, not repeal it altogether.
A. Continuing Efforts to Strike Down the ACA in its Entirety
Two legal claims now before the appellate courts would, if successful,
gut the ACA. The first theory contends that the ACA is unconstitutional be-
cause it violates the Origination Clause of the Constitution, a provision that
requires bills for raising revenues to originate in the House of Representa-
21 Federal district courts in the District of Columbia and Texas have
rejected the argument.
22 Both courts rely on Supreme Court precedent that
applies the Origination Clause narrowly, only to bills whose “primary pur-
19. Kate Giammarise, Corbett changes course on Medicaid Pursuing work incentive
instead of requirement, PITTSBURGH POST-GAZETTE, Mar. 6, 2014, http://www.post-
requirement/stories/201403060288#ixzz2yofQ23Fh; but see Corey Davis, Nat’l Health Law
Program, Medicaid Expansion Work Requirements (Oct. 4, 2013), http://www.
work#.UwJtg4VFDks (discussing why states should not be able to impose work requirements on ACA Medicaid expansion populations).
20. See Jamie Fuller, Here’s what you need to know about the Hobby Lobby case,
WASH. POST, Mar. 25, 2014, 6: 30 AM), http://www.washingtonpost.com/blogs/the-
Hobby Lobby v. Sebelius and Conestoga Wood Specialties Corp. v. Sebelius).
21. See U.S. CONST. art. I, § 7, cl. 1.
22. See Sissel v. U.S. Dep’t of Health & Human Servs., 951 F. Supp. 2d 159 ( D. D. C.
2013), appeal docketed, No 13-5202 ( D. C. Cir. July 8, 2013); Hotze v. Sebelius, No. 4:13-
CV-01318, 2014 WL 109407, at 1 (S. D. Tex. 2014), appeal docketed, No. 14-20039 (5th
Cir. Jan. 16, 2014).