Affordable Care Act

  • March 5, 2015

    by Caroline Cox

    Robert Barnes reports for The Washington Post on the oral arguments for King v. Burwell and observes that the Court seemed to split along ideological lines in questioning during the case.

    Linda Greenhouse argues in The New York Times that the very nature of the Supreme Court will change if it chooses to overturn the Affordable Care Act.

    At NPR, Mara Liasson explains why both Republicans and Democrats should be concerned about the outcome of King v. Burwell.

    Mark Joseph Stern writes at Slate on the recent Justice Department report that finds Ferguson police have a history of bias towards African Americans and disregard for constitutional rights.

    At Democracy Now, Juan González and Amy Goodman discuss how Ferguson illustrates the importance of undoing the criminal justice system of “racial control” with Michelle Alexander, author The New Jim Crow: Mass Incarceration in the Age of Colorblindness.

  • March 4, 2015

    by Jeremy Leaming

    Following oral argument in the latest effort to topple the Affordable Care Act, SCOTUSblog’s Lyle Denniston says a major part of the private discussions among Supreme Court justices will center on the harm they could do to the nation’s health care system if a majority buys the challengers’ argument in King v. Burwell.

    ACS President Caroline Fredrickson on MSNBC’s “The Cycle,” tore into the challengers’ statutory based argument, saying it strays far from precedent on statutory interpretation.

    Fredrickson, discussing a federalism-based question from Justice Anthony Kennedy during the March 4 oral arguments, said it would be absurd to believe Congress placed into the health care legislation a “ticking time-bomb,” which would strip tax support from large numbers of the currently insured in an effort to coerce 34 states to set up their own exchanges.

    Instead Fredrickson argued that the justices should look at the text within its context. This is basic statutory interpretation learned early in law school, she said.

    See video of “The Cycle," below:


  • March 4, 2015

    by Caroline Cox

    Today, the Supreme Court hears oral arguments for King v. Burwell. Robert Schlesinger writes in U.S. News that a Supreme Court decision against the government would result in both human and political misery. ACS President Caroline Fredrickson is quoted in the article, explaining that a ruling against the government would be a problematic new type of judicial activism.

    Geoffrey R. Stone discusses the case at The Daily Beast, arguing that it should be an open and shut case in favor of the government.

    At Vox, Adrianna McIntyre provides a look at the legal doctrine that could save the Affordable Care Act.  

    Sahil Kapur reports at Talking Points Memo that Senate GOP leaders are unlikely to have a new health care bill ready by the announcement of the Supreme Court’s ruling in the case.

    Other coverage of the case come from Nicholas Bagley in The New York Times, who argues that the plaintiffs have misread the Affordable Care Act, and Jonathan Chait in New York Magazine, who writes that the defeat of the government in the case would hurt Republicans the most.

    In other news, the Joint Center for Political and Economic Studies released a new report on the state of race in politics. Among its findings is the fact that blacks, in terms of policy outcomes, were the least advantaged group in America according to data from 1972 to 2010.

    Dawinder S. Sidhu writes in The Atlantic that the Supreme Court has a chance to end the practice of employers using dress codes to hide visibly religious employees.

    Fred Barbash reports for The Washington Post that the Alabama Supreme Court has, in defiance of federal courts, ordered judges in the state to stop issuing marriage licenses to same-sex couples.

  • 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.

  • 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.