//  6/24/19  //  Quick Reactions

In a surprise, the Supreme Court agreed this morning to hear cases arising out of the risk corridor mess. At issue is $12 billion in federal money, and the case’s outcome will hinge on what Congress meant when it placed limits on the use of appropriated funds in an effort to sabotage the Affordable Care Act.

The Federal Circuit held that Congress, in placing those limits, qualified an earlier promise made in the ACA to make risk corridor payments to insurers that lost big on the exchanges. As I’ve explained many times, I think that decision is wrong. We’ll see if the Supreme Court agrees.

I’m on the road, so a longer recap of the background and the litigation will have to wait. But I’ve been writing about the appropriations battle since 2014, and I thought I’d provide some resources if you’re interested in learning more about the case.

  • Here’s my take on the Federal Circuit decision that the Supreme Court will review. It’s a short and crisp description of the key issues in the case, and offers too my views about why the Federal Circuit got this one wrong.
  • Craig Garthwaite and I put the litigation into its broader context—the full faith and credit of the U.S. government—in this New York Times op-ed.
  • I discuss the litigation at some length in this Pennsylvania Law Review piece laying out my view that
  • I’ve got a piece in the New England Journal of Medicine discussing rumors that the Obama administration wanted to settle the cases when they were still in the Court of Federal Claims.
  • And here’s my first piece from May 2014 on the whole fiasco—titled “Does the Risk Corridor Program Have a Fatal Technical Flaw?”

@nicholas_bagley


The Costs Of The Census Debacle

7/15/19  //  Quick Reactions

Even though the administration ultimately caved and chose not to include a citizenship question on the census, its two-week flirtation with including a citizenship question on the 2020 census had significant costs.

Leah Litman

Michigan Law School

Robert Bork’s America is Becoming Donald Trump’s America

7/15/19  //  Commentary

As President Trump puts additional judges on the federal courts for life and continues his own extreme policies, Bork’s America is coming to life more and more as Trump’s America.

Elliot Mincberg

People For the American Way

The President Cannot Constitutionally Block His Critics on Twitter

7/12/19  //  Commentary

The decision is a victory for free speech, an important signal to government officials in the social media era, and a refreshing holding that the President is not above constitutional constraint

Amanda Shanor

The Wharton School