//  12/19/19  //  Commentary

That's the headline of an article I published today at The Atlantic. Here's a taste:

In an opinion blending arrogance and cowardice in equal measure, a Texas appeals court ruled yesterday that the Affordable Care Act contains a constitutional flaw—and that most or all of the law may have to be scrapped. But the court was coy about just how much of the law has to go, and punted that decision back to the same judge who, last December, declared the entire law invalid.

What happens next is uncertain. The Supreme Court might choose to hear the case, Texas v. United States, right away, setting up a constitutional showdown that could become the centerpiece of the 2020 presidential election. Or the justices could wait until the lower court rules, leaving the fate of Obamacare in limbo for years.

Neither outcome is good. And it’s all completely unnecessary. The case is a partisan stunt that’s been roundly condemned by lawyers on both sides of the aisle. It should’ve been laughed out of contention long ago. The opinion from the U.S. Court of Appeals for the Fifth Circuit is an embarrassment, both to the Republican-appointed judges who put their names to it and to the federal judiciary as a whole. 

Read the whole thing here!

@nicholas_bagley


Versus Trump: Legal Challenges, Plus The Post Office Case

11/8/20  //  Commentary

On this week's Versus Trump, Charlie and Jason discuss the (frivolous) legal challenges to come. They are then joined by Public Citizen's Matthew Seligman to learn what happened with all those last-minute ballots, and what might happen in ongoing litigation in the Supreme Court.

Charlie Gerstein

Civil Rights Corps

It's Over. What's Next? Just Recounts, Shenanigans, and Hail Marys

11/6/20  //  Commentary

I catalog the legal attacks to come from the Trump team. None of his strategies have any chance of changing the outcome.

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