//  10/31/18  //  Uncategorized

That’s the headline to an article of mine, co-authored with Sam Bray of Notre Dame Law School and published today in The Atlantic. We highlight the disquieting possibility that a single district court in Texas might soon enter an injunction prohibiting the enforcement of all or part of the Affordable Care Act across the entire country.

Something is very wrong with this picture. Under the Constitution, the federal courts are vested with the “judicial Power,” which has traditionally been understood to limit them to resolving disputes between the parties who appear before them. That makes sense in a democracy: Unelected judges shouldn’t adjudicate the rights of non-parties or referee abstract political fights.

In a quiet shift over the last 60 years, however, the courts have gradually assumed the power to enter national injunctions against federal statutes and regulations, at least under some (not very well-defined) circumstances. The trend has accelerated dramatically in the last three-and-a-half years, as claims of executive overreach have proliferated.

The Supreme Court has not expressly ruled on the legality of these national injunctions, though it has recently shown some interest in the issue. In our judgment, it should curtail the practice.

The point is not a partisan one. (One of us is a Republican, the other a Democrat.) Before courts entered national injunctions against the Trump administration, they used them to thwart the Obama administration’s rule for overtime pay and its signature immigration policy, Deferred Action for Childhood Arrivals.

National injunctions are equal opportunity offenders.

Here’s the whole thing. If you want to learn more, I’d encourage you to read Sam’s excellent Harvard Law Review article on national injunctions.

@nicholas_bagley


The Affordable Care Act Does Not Have An Inseverability Clause

11/5/20  //  In-Depth Analysis

Contrary to challengers’ claim, Congress nowhere directed the Supreme Court to strike down the entire ACA if the individual mandate is invalidated. Congress knows how to write an inseverability directive, and didn’t do it here. That, combined with Congress’s clear actions leaving the ACA intact and the settled, strong presumption in favor of severability, make this an easy case for a Court that is proud of its textualism.

Abbe R. Gluck

Yale Law School

Versus Trump: Are Tax Returns Coming Soon?

7/18/20  //  Commentary

On this week’s Versus Trump, Jason and Charlie discuss the Supreme Court's pair of decisions governing Trump's tax returns. Are they coming soon? Did the Democrats make a mistake in not being more aggressive in invoking the impeachment power? Listen now!

Charlie Gerstein

Civil Rights Corps

Who Decides the Future of the Equal Rights Amendment?

7/6/20  //  In-Depth Analysis

Congress should decide what happens to the Equal Rights Amendment, not the courts or the Executive Branch.

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