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 Act.

The Federal Circuit held that Congress, in placing those limits, qualified an earlier promise made in the ACA to make risk corridor payments to insurers that lost big on the exchanges. As I’ve explained many times, I think that decision is wrong. We’ll see if the Supreme Court agrees.

I’m on the road, so a longer recap of the background and the litigation will have to wait. But I’ve been writing about the appropriations battle since 2014, and I thought I’d provide some resources if you’re interested in learning more about the case.

  • Here’s my take on the Federal Circuit decision that the Supreme Court will review. It’s a short and crisp description of the key issues in the case, and offers too my views about why the Federal Circuit got this one wrong.
  • Craig Garthwaite and I put the litigation into its broader context—the full faith and credit of the U.S. government—in this New York Times op-ed.
  • I discuss the litigation at some length in this Pennsylvania Law Review piece laying out my view that
  • I’ve got a piece in the New England Journal of Medicine discussing rumors that the Obama administration wanted to settle the cases when they were still in the Court of Federal Claims.
  • And here’s my first piece from May 2014 on the whole fiasco—titled “Does the Risk Corridor Program Have a Fatal Technical Flaw?”


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