Notice & Comment

Author: Nicholas Bagley

Notice & Comment

Regulating Contagion

Last semester, I developed a new class at the University of Michigan called Regulating Contagion: Pandemics and Disease in U.S. Legal History (syllabus here). Drawing partly on a seminar I co-taught back in 2015, and partly on work as special counsel to Governor Whitmer on her COVID-19 response, the class advanced three big ideas. First: […]

Notice & Comment

I’m Still Worried: A Post on Law and Leviathan, by Nicholas Bagley

*This is the fourth post in a series on Cass Sunstein and Adrian Vermeule’s new book Law and Leviathan: Redeeming the Administrative State. For other posts in this series, click here. Law and Leviathan is a comforting read. The modern regulatory state, Cass Sunstein and Adrian Vermeule tell us, is not in tension with the […]

Notice & Comment

What should Biden do about Medicaid work requirements?

I’ve got a new article out at The Atlantic digging into that surprisingly thorny question. At stake here is whether the Biden team can move quickly enough to forestall the Supreme Court from deciding two pending cases involving work requirements in Arkansas and New Hampshire. It’ll be tricky, in part because of some last-minute shenanigans to […]

Notice & Comment

Emergency Public Health Powers in Michigan

Yesterday, I canvassed the Michigan governor’s emergency powers, which are surprisingly broad. But they do not cover the waterfront of emergency authority in the state. The director of the Michigan Department of Health and Human Services—currently Robert Gordon—has his own suite of emergency powers. Once the M-DHHS director determines “that control of an epidemic is […]

Notice & Comment

Emergency Powers in Michigan

With just 80 confirmed cases, Michigan has so far been spared an acute outbreak of the coronavirus. But our time is coming. Already, Governor Whitmer has taken steps to slow the virus’s spread, including closing schools and restaurants and banning large public gatherings. She will have to get much more aggressive in the coming weeks […]

Notice & Comment

Can the CDC pay for everyone’s coronavirus testing?

I drafted the following before the House of Representatives struck an apparent deal with the White House to pass a bill to cover coronavirus testing. Should that deal fall through, the post could become newly relevant. It may also be of interest because it discusses the federal government’s quarantine powers with respect to infectious diseases. […]

Notice & Comment

End the Nationwide Injunction

Sam Bray and I have submitted an amicus brief urging the Supreme Court to put a decisive end to the new but all-too-common practice of entering nationwide injunctions in cases challenging government laws or rules. Sam and I come from different points on the political spectrum. Both of us believe, however, that nationwide injunctions are […]

Notice & Comment

Why State Efforts to Mandate Coronavirus Testing Will Fall Short

To cope with incipient coronavirus outbreaks, Washington and New York have announced emergency directives requiring insurers to cover COVID-19 testing without cost-sharing. The states recognize that the high deductibles and other out-of-pocket payments discourage people from getting tested, which in turn threatens public health. Both states have acted pursuant to laws governing the regulation of […]

Notice & Comment

Some of Trump’s Most Devious Lies Are About Health Care

I’ve got an op-ed in the New York Times today that explores how the Trump administration is using executive power in the health-care space. It’s not a pretty picture. As Democrats debate the best way to achieve universal coverage and lower health care costs, the Trump administration has a different approach to the challenges of our current system. It’s […]

Notice & Comment

Michigan’s ban on flavored vaping products

Last month, Michigan became the first state in the country to ban the sale of flavored vaping products. The ban came in an emergency rule that, with the governor’s approval, took effect immediately and allowed the state to temporarily bypass notice and comment. Sellers of the products sued, and ten days ago, a state judge […]

Notice & Comment

The Rise of the Know-Nothing Judge

That’s the headline of a new piece of mine in the Atlantic. It focuses on the oral argument before the Fifth Circuit in Texas v. United States, and the apparent willingness of two Republican-appointed judges to entertain seriously the notion of invalidating the entire ACA. How did it come to this? What the hell is […]

Notice & Comment

Silver bullets, blue pencils, and the future of the ACA

Yesterday, the Fifth Circuit heard oral argument in Texas v. United States. It was pretty brutal: consistent with the reporting, the two Republican-appointed judges on the panel appeared receptive to the argument that the Affordable Care Act should be declared invalid. (The Democrat-appointed judge was silent.) Just how receptive is hard to say, and it’s […]

Notice & Comment

Background on Texas v. United States

The Fifth Circuit will hear oral argument tomorrow in Texas v. United States, a sweeping challenge to the Affordable Care Act arising out of Congress’s decision, in late 2017, to eliminate the penalty for going without insurance. The case should never have been taken seriously. The red states that brought the suit don’t have standing […]

Notice & Comment

The Justice Department’s New Brief in Texas v. United States

Last week, the Fifth Circuit asked the parties to Texas v. United States—the broadside challenge to the constitutionality of the Affordable Care Act—to submit letter briefs on whether anyone had standing to appeal. (Jonathan Adler has offered excellent analysis of that order here.) Though the briefs won’t all be filed until Friday, the Justice Department […]