//  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


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

The Contraceptive Mandate Takes Another Hit

7/2/19  //  Commentary

The decision mounts an end run around other federal courts and prior precedent in the Fifth Circuit and risks disrupting insurance markets

Elizabeth Sepper

Washington University