//  12/15/18  //  Commentary

And I've got an op-ed in the Washington Post about why the court is wrong. Here's a taste:

Who cares if a zero-dollar mandate is constitutional or not? Why does it matter in the slightest? And what on earth does it have to do with the rest of ACA?

You might have thought that the right remedy would be to invalidate the penalty-free mandate. Doing so would align with Congress’s evident view that an ACA without an individual mandate was preferable to an ACA with it. That’s what I argued in an amicus brief with a bipartisan group of law professors.

Instead, the court held that the entire ACA was “inseverable” from the purportedly unconstitutional mandate. To reach that conclusion, the judge leaned heavily on Congress’s findings from 2010, where it said that the individual mandate was “essential” to the law.

But the mandate that the 2010 Congress said was essential had a penalty attached to it. The finding is irrelevant to a mandate that lacks any such penalty.

In any event, it doesn’t matter what Congress meant to do in 2010. It matters what Congress meant to do in 2017, when a different Congress made a different call about whether the mandate was essential. We know what Congress wanted to do in 2017: repeal the mandate and leave the rest of the act intact. Its judgment could not have been plainer. (I know. I was there! So were you. It wasn’t that long ago.)

You can read the whole thing here. My co-amici, Jonathan Adler and Abbe Gluck, have a New York Times op-ed sounding similar themes.

I'll probably write them up more extensively in the coming days, but I've also got tentative thoughts about the immediate consequences of the decision (short answer: nothing right now) and the potential difficulties with getting a quick appeal of the decision.

@nicholas_bagley

 


Versus Trump: Trump Loses On Family Planning, Wins In The Ninth, and More

5/16/19  //  Uncategorized

This week on Versus Trump, Jason and Easha go through a few updates to cases involving Title X, which provides money for family planning; the Administration's policy to have many asylum applicants removed to Mexico; and the controversial border wall. Trump lost one, won one—for now, and hasn't yet gotten a decision in the third. Listen now!

Jason Harrow

Equal Citizens

Easha Anand

San Francisco

Versus Trump: Healthcare Update (With Guest Greer Donley)

4/11/19  //  In-Depth Analysis

This week on Versus Trump, Jason and Charlie talk with special guest Greer Donley, a law professor at University of Pittsburgh School of Law, to talk about the latest developments in litigation related to Obamacare, including the stunning DOJ reversal in Texas, and recent decisions prohibiting states from adding work requirements to Medicaid. Listen now!

Jason Harrow

Equal Citizens

Charlie Gerstein

Civil Rights Corps

Why the New Push to Kill Obamacare Is So Alarming

3/27/19  //  Commentary

The Justice Department has a durable commitment to defending acts of Congress whenever a non-frivolous argument can be made in their defense. The Trump administration is putting that commitment to the torch.

Nick Bagley

University of Michigan Law School