//  2/22/18  //  Commentary

I’ve got a new piece at Vox digging into Idaho’s decision to flout the Affordable Care Act. If you want to learn something about Idaho administrative law (I know, I know, pure clickbait), this is the place to look. I also kick the tires on the analogy between what Idaho’s doing and marijuana legalization.

The upshot is that I wouldn’t count on the courts to intervene, even though what Idaho is doing is patently illegal.

If Idaho moves forward and other states follow its lead, what will emerge is a gray market in noncompliant insurance coverage, not unlike the gray market in legalized marijuana. Indeed, the marijuana analogy fits neatly. In both cases, state officials have purported to legalize conduct banned by federal law; in both cases, federal officials have been reluctant to enforce a law they disagree with.

And as with marijuana, what starts in one state will spread. As floutings of federal law go, Idaho’s approach is pretty measured. Under its rules, insurers that sell noncompliant plans must also sell compliant plans, the unhealthy can “only” be charged 50 percent more than the healthy, and insurers must cover preexisting conditions (unless there’s a gap in coverage, in which case they don’t).

But other red states that follow Idaho’s lead may not be so restrained. They might allow insurers to ditch their ACA-compliant plans, to exclude any and all preexisting conditions, or to jettison coverage for mental health care. Red states could take us back to the harsh pre-ACA state of affairs, and all without the need for congressional action.

So this story isn’t really about Idaho. It’s about every Republican-controlled state that’s waiting to see what happens next.

@nicholas_bagley


The Rise of the Know-Nothing Judge

7/15/19  //  Commentary

Know-Nothing judges may drape themselves in the robes of judicial modesty, but they are activists to the core. And they may decide the fate of health reform.

Nick Bagley

University of Michigan Law School

Silver bullets, blue pencils, and the future of the ACA

7/10/19  //  Quick Reactions

Yesterday, the Fifth Circuit heard oral argument in the case challenging the constitutionality of the Affordable Care Act. It didn't go well.

Nick Bagley

University of Michigan Law School

The Justice Department’s New Brief in Texas v. United States

7/4/19  //  Commentary

In a welcome surprise, the Trump administration has urged the Fifth Circuit not to dismiss the appeal of the decision invalidating the Affordable Care Act.

Nick Bagley

University of Michigan Law School