Notice & Comment

Author: Nicholas Bagley

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 […]

Notice & Comment

The Supreme Court Will Hear the Risk Corridor Cases

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 […]

Notice & Comment

On Gundy and the Nondelegation Doctrine

“On Thursday, the conservative wing of the Supreme Court called into question the whole project of modern American governance.” So opens an op-ed of mine at the New York Times. Because Justice Kavanaugh was recused from the case, the conservative wing was deprived of a potential fifth vote. But that vote may come: Judging from […]

Notice & Comment

Would it be legal to block grant Medicaid?

I don’t know, and I doubt the Trump administration does either. But we may soon find out. With the Trump administration’s encouragement, Tennessee is moving ahead with a waiver to block grant its Medicaid program under section 1115 of the Social Security Act.  “Currently,” as Stephanie Armour explains at the Wall Street Journal, “Tennessee, like […]

Notice & Comment

A motley crew in Texas v. Azar

Together with Jonathan Adler, Abbe Gluck, and Ilya Somin, I’ve filed an amicus brief with the Fifth Circuit in Texas v. Azar. Those of you who’ve been closely following health-reform litigation know that Abbe and I often square up against Jonathan and Ilya. It’s a testament to the outlandishness of the district court’s decision that […]

Notice & Comment

The Trump Administration Now Thinks the Entire ACA Must Fall

In a stunning, two-sentence letter submitted to the Fifth Circuit today, the Justice Department announced that it now thinks the entire Affordable Care Act should be enjoined. That’s an even more extreme position than the one it advanced at the district court in Texas v. Azar, when it argued that the court should “only” zero out the protections for people […]

Notice & Comment

The Procedure Fetish

That’s the title of a new article of mine, slated for publication in the Michigan Law Review. It’s more polemical than most of my work, and it aims to disrupt some of the tidy stories that organize modern administrative law. Although I hope it finds an audience across the political spectrum, its primary target is […]

Notice & Comment

The United States Owes Tens of Billions, Says the Court of Federal Claims (Part 2).

In yesterday’s post, I canvassed the latest decisions from the Court of Federal Claims in the fight over whether insurers can recover cost-sharing payments. Three different judges have now concluded—rightly, in my view—that the United States has breached its payment obligation and must pay damages. The harder question is how to calculate those damages. Should […]

Notice & Comment

The United States Owes Tens of Billions to Insurers

The litigation to recover cost-sharing money has heated up in the Court of Federal Claims, with potentially enormous consequences for the public fisc. Three federal judges have now concluded that the United States is liable to insurers for missed cost-sharing payments. If their decisions stand, insurers could recover roughly $12 billion a year, every year, […]

Notice & Comment

Blocking the Trump administration’s contraception rules (again).

Yesterday evening, a California federal judge enjoined the Trump administration from enforcing two rules that would greatly expand the exemptions to the Affordable Care Act’s contraception mandate. The injunction applies only in the plaintiff states, which include California, New York, Virginia, and ten others, as well as Washington, D.C. I’ve written extensively about these rules, […]

Notice & Comment

To Save Obamacare, Repeal the Mandate

My colleague Richard Primus and I have 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 […]

Notice & Comment

The Trump administration targets the contraception mandate

With the midterms out of the way, HHS has released two final rules affording employers wide leeway to opt out of the so-called contraception mandate. The first exempts employers with religious beliefs from the obligation to include contraception in the health insurance package they offer to their employees. The second does the same for employers […]