• March 3, 2015

    by Caroline Cox

    At MSNBC, Ari Melber argues that the lawsuit against the Affordable Care Act in King v. Burwell is a charade.

    Sahil Kapur writes for Talking Points Memo that if the Supreme Court rules against the Affordable Care Act, dysfunction in the Republican-led Congress will lead to healthcare chaos.

    At the Huffington Post, Jonathan Cohn examines the path of lawsuit against the Affordable Care Act and its dubious basis.

    Simon Lazarus reviews the new book from Robert A. Katzmann at Democracy and considers how King v. Burwell will show whether conservative justices will “follow common-sense principles” or side with those who hope to rationalize “politically driven, legally flimsy results.”

    Noah Feldman takes a look at the recent Arizona redistricting case at Bloomberg View and asserts that the founders would approve of the state’s referendum model of redistricting.

    At The Nation, Ari Berman asserts that racism, inequality, and segregation persist fifty years after Selma.

  • March 2, 2015
    Guest Post

    by Sara Rosenbaum, Harold and Jane Hirsh Professor, Milken Institute School of Public Health, The George Washington University and Georges Benjamin, executive director, American Public Health Association

    King v Burwell carries profound public health implications.

    The central legal question in this case is whether the Internal Revenue Service properly interprets 26 U.S.C. 36B to make the federal premium tax credits of the Affordable Care Act (ACA) available to all eligible taxpayers through the Exchanges in every state. It is evident from the government’s brief as well as briefs filed by leading economists, who argue the ACA cannot function without premium subsidies   and insurers, who argue that broad risk pools are an essential component of the ACA and therefore must have been required for every state regardless of who runs the exchange that a Supreme Court decision in favor of the petitioners in King v. Burwell could unravel the industry in dozens of states rather than strengthen it, as the ACA  was structured to do.

    But the harms flowing from a decision against the government transcend a crisis in the insurance markets: by stripping residents of subsidies in the 34 states that depend on the federal Exchange, a decision against the government would carry enormous implications for public health.  For this reason, over 100 public health deans and scholars joined the American Public Health Association to file an amicus brief on behalf of the government, arguing in favor of a ruling that would uphold access to affordable insurance for nearly all Americans, regardless of the state in which they live. 

  • March 2, 2015

    by Caroline Cox

    The Editorial Board of The New York Times criticizes the legal attack of the Affordable Care Act in King v. Burwell.

    Robert Barnes argues in The Washington Post that King v. Burwell threatens Chief Justice John Roberts’s work to create a Supreme Court that appears less partisan.

    In the Los Angeles Times, Brianne J. Gorod predicts that the Chief Justice will rule for the government in King v. Burwell, arguing that “He’s too good a lawyer to do otherwise.”

    In The Huffington Post, Geoffrey R. Stone calls the recent decision to close the University of North Carolina Law School’s Center on Poverty, Work and Opportunity “a blatant and dangerous instance of political interference with academic freedom.”

    Matt Apuzzo writes for The New York Times about the Justice Department’s critical report of the police in Ferguson, Missouri.

  • February 27, 2015

    by Jeremy Leaming

    Yes, King v. Burwell is fundamentally a case dealing with a statutory matter, not a lofty constitutional claim, but at the end of the day one must not forget that this statutory-based case, if handled improperly by the Supreme Court, will harm millions of Americans, making economic inequalities worse in this country and sending the nation’s health care system into chaos. That’s according to Erwin Chemerinsky, dean of the University of California, Irvine School of Law and one of the nation’s leading legal scholars, who along with Yale Law School Professor Abbe Gluck were featured in a February 26 ACS briefing on King, which the Supreme Court will hear oral argument in on March 4.

    “I think it’s important for us to focus on who is going to suffer from a result of this [a ruling by the Supreme Court that would buy the Obamacare challengers’ argument],” Chemerinsky said toward the end of the discussion. “There are millions of individuals who will no longer have health insurance because they won’t be able to afford it without” the tax credits. Such an outcome would bring down the Affordable Care Act, leaving millions without health care coverage and millions more with higher costs to keep it, he said.

    Gluck noted the highly politicized nature of King, but focused on the statutory challenge and the role of the Supreme Court.

    “The case at bottom is about how the Supreme Court is going to do textual interpretation of four words in a two-thousand page law that is very complex. The challengers want the Court to look at these four words – the words are ‘established by the state,’ … in a vacuum, and the government is saying just as the court has done time and time again … that you have to look at statutory language in context and against the backdrop of all of the other legal principles, including federalism and agency deference that the Court has traditionally used to interpret statutes.”

    Gluck said there is a lot of extra textual narrative and history being invoked in the case, but not by the government. “There is a whole blogosphere set of activity, that is aimed to construct a narrative to convince the Court that what the challengers are arguing is true – that it is actually possible that Congress could have written a statute into which it sowed the seeds of its own destruction,” Gluck continued.

    Without that narrative, Gluck said, “it is impossible to think that any court would buy that story because it is so destructive to the statute as a whole and it is implausible to think Congress would have ever intended it.”

    Listen to the entire discussion here. For more on King v. Burwell, see Chemerinsky’s recent ABA Journal piece and Gluck’s Feb. 27 article for Politico Magazine.

  • February 27, 2015
    Guest Post

    by Nicholas Bagley, Assistant Professor of Law, University of Michigan Law School.

    *This piece first appeared at The Incidental Economist

    One of the strangest things about King v. Burwell is the challengers’ claim that the ACA clearly withholds tax credits from states that refused to set up exchanges. When asked why on earth Congress would do such a thing, the challengers insist that Congress badly wanted the states to establish their own exchanges. The tax credits were, on this view, a carrot to prompt state participation.

    Some federal programs do work kind of like this. Medicaid, for example, dangles federal money to the states in order to encourage them to participate. If a state doesn’t accept the conditions that Congress places on receiving that money, then the state doesn’t get the money. In the lingo, Medicaid is a conditional spending program.

    When it comes to the exchanges, however, the ACA is not a conditional spending program. And it’s not a close call: the ACA doesn’t look like any other conditional spending program in the U.S. Code. Together with Thomas Merrill, Gillian Metzger, and Abbe Gluck, I submitted an amicus brief to the Supreme Court explaining why. (Abbe developed some of these arguments in a blog post last year.)

    For starters, Congress isn’t coy about what happens when a state fails to participate in a conditional spending program. It speaks clearly—the state doesn’t get the money—and that consequence is spelled out in a provision that speaks directly to states. That’s how the Medicaid statute works: when a state fails to play by Medicaid’s rules, “the Secretary [of HHS] shall notify such State agency that further payments will not be made to the State.” Direct and clear.