After helping to defend the Affordable Care Act, were you surprised that more states did not create health exchanges of their own?
I thought more states would opt into the Medicaid expansion because, by not doing so, they’re turning down money and benefits for their own populations in order to stoke ideological interests. With regard to the exchanges, back in the “beginning, some of the states were making noises about opting out. I didn’t know how many would. I figured a bunch would. When the states sued, this was a surprise to me.
Earlier this month, the D.C. Circuit vacated its July ruling that subsidies given to individuals to help them afford health care insurance violate the plain language of the Affordable Care Act, also known as Obamacare. Now the circuit court will be re-examining this issue. What’s your take?
Nobody ever thought that states with federal exchanges wouldn’t get subsidies. It just makes no sense.
Was the defense of the ACA the signature achievement of your career?
It’s a litigator’s dream. It was the opportunity to participate in one of the most important cases of our day, a case that is now being taught in con law classes in law school because it frames so many issues. And it makes a difference in terms of people’s lives. My view is that it’s always been about the job, not about the trappings. This was just a great job.
How long did you have to prepare?
The statute passed on March 23, 2010. That’s when the president signed it. I got a call sometime before the end of March asking me if I wanted to do this. I was at the Justice Department on April 5. I had between March 27 and April 5 to prepare. I had done work in the health care space in terms of litigation, but I didn’t know a lot about the statute.
Speaking of statues, can you walk us through the Alien Tort Statute? How in Matar, et al. v. Dichter did the plaintiffs hope to use that arcane statute to sue a former high-ranking Israeli official in federal district court here in America?
The Alien Tort Statute was part of the Judiciary Act of 1789, and I think it was originally intended to cover privacy [little of the legislative history survives]. It’s a jurisdictional statute that says there is
jurisdiction here over people who commit torts overseas. It was used as a jurisdictional basis in the Dichter case for people to sue Avraham Dichter, the former head of Israel’s Shin Bet, for
injuries they alleged they suffered or from loved ones lost in Israel’s 2002 bombing of a Gaza apartment complex in which the military leader of Hamas was living. The appellants claimed that Dichter, as head of the Israeli Security Agency, had participated in the decision to launch the attack. Dichter was here in the United States and was caught by what’s called “gotcha service.”
We won dismissal of the claims in District Court in 2007 on the grounds that sovereign immunity protected Dichter against liability for any actions he took on behalf of the state of Israel and that the case presented political questions unsuitable for resolution by a court.
On appeal, the appellants argued that the Foreign Sovereign Immunities Act (FSIA) did not extend to former officials. Dichter was no longer an official of theIsraeli government when the appellants sued. The Court of Appeals in 2009 held that it did not need to decide whether the FSIA applied because, “even if Dichter, as a former official, is not categorically eligible for immunity under the FSIA . . . he is nevertheless immune from suit under common-law principles that pre-date, and survive, the enactment of that statute.”
How did it feel to successfully defend an Israeli official?
It was a labor of love.
You clerked for Supreme Court Justice Thurgood Marshall. What do you remember most about the experience?
He used to come into the clerks’ office, plop into a big easy chair and tell civil rights stories for hours. I knew I’d be working very late, but I remember his stories a lot better than the cases. Justice Marshall was a born storyteller. Storytelling is a trial lawyer’s art. Abraham Lincoln had it. He really put himself on the line, something very few of us do in the practice of law.