//  12/21/18  //  Commentary

We've got an article at The Atlantic offering an idea to the incoming House of Representatives about how to deal with the decision out of Texas invalidating the Affordable Care Act.

If congressional intent is the key to O’Connor’s decision, Congress can intervene. And the best way for it to do so is not to enter the litigation, as the incoming speaker of the House, Nancy Pelosi, has said she’ll do. It’s to legislate.

Congress could fix the problem by saving, severing, or sinking the mandate. First, Congress could make the mandate constitutional again by raising the penalty for not having insurance from zero dollars, where Congress set it in 2017, to one dollar. Second, Congress could declare the individual mandate severable from all other parts of the ACA. Third, it could repeal the mandate—something that might once have wrecked the ACA but that now would have little or no effect on the rest of the regulatory framework. ...

Any of these solutions could be accomplished in a one-sentence statute, and any one of them would end the Texas lawsuit. The challenge is political. Republicans hold the Senate, Democrats will soon control the House, and the two parties don’t see eye to eye on much. ...

At least some Republicans, [though], might be interested in gaining a symbolic victory and avoiding a self-inflicted wound. Why not give it a shot? The House should pass a one-sentence bill adopting one of these three fixes. Send it to the Senate. See what happens next. If the Senate goes along, it’ll be a moment of bipartisanship and responsible congressional behavior. And if the Senate refuses, the Democrats can pummel the Republicans for supporting an irresponsible lawsuit.

Read the whole thing here!

@nicholas_bagley & @raprimus


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

Sovereignty In A Public Health Crisis

5/4/20  //  Commentary

Don Herzog explains why sovereignty talk is useless to resolving public health issues -- and basically everything else too.

Take Care