Affordable Care Act

  • March 27, 2015

    by Caroline Cox

    In the Huffington Post, Geoffrey Stone takes a look at the Texas license plate case and the intriguing First Amendment question it poses.

    The Editorial Board of the Los Angeles Times argues that the Supreme Court must protect the EPA’s authority to set new limits on pollutants.

    Sam Stein of the Huffington Post discusses how those challenging the Affordable Care Act at the Supreme Court lack any significant paper-trail to support their claims.

    In USA Today, Richard Wolf argues that the Supreme Court has increased its power significantly over the last three years.


    Greg Stohr of Bloomberg News reports that the recent Supreme Court ruling on Alabama redistricting is a partial victory for Democrats and black lawmakers.

  • March 17, 2015

    by Caroline Cox

    The Editorial Board of The New York Times argues against the “last-minute political mischief” that is delaying the confirmation of Loretta Lynch.

    At The Hill, Ralph S. Tyler predicts that the federal government will win in King v. Burwell.

    Conor Friedersdorf writes in The Atlantic that some conservatives are beginning to recognize the importance and implications of the Justice Department’s report on Ferguson.

    At The New Republic, Cristian Farias discusses Justice Stephen Breyer’s recent remarks on “government institutions, constitutional structures, and the administrative state” as well as his reluctance to comment on the national Ferguson debate.

    Steven Benen reports for MSNBC that the Affordable Care Act has cut the national uninsured rate by more than a third.

  • March 13, 2015

    by Caroline Cox

    John Eligon and Eli Yokley report for The New York Times on the recent shooting of two police officers in Ferguson, Missouri and the tension between the city and protesters.

    Alex S. Vitale discusses at The Nation how President Barack Obama’s proposed police reforms fail to address the most significant causes of police misconduct.

    In the Los Angeles Times, Scott Martelle raises questions about Missouri attempts to execute a brain-damaged man.

    At Salon, Katie McDonough reports that lawmakers in Montana have proposed new abortion restrictions based on anti-choice pseudoscience.

    Brian Beutler argues in The New Republic that The Wall Street Journal’s arguments against the Affordable Care Act are based on a dishonest reading of history.

    Michael Li considers at the blog for the Brennan Center for Justice the legacy of Selma and the representation revolution.

  • March 11, 2015

    by Caroline Cox

    Nina Totenberg reports for NPR that the Supreme Court has ordered a federal appeals court to take another look at the University of Notre Dame’s case against the Affordable Care Act’s birth control mandate.

    In The Washington Post, E.J. Dionne Jr. reflects on the legacy of Selma, and calls on the government to “honor Selma by restoring an effective Voting Rights Act.”

    Geoffrey R. Stone argues in the Huffington Post that the University of Oklahoma cannot constitutionally expel students for their racist rants on a fraternity bus.

    Conor Friedersdorf of The Atlantic discusses how, in light of recent problems with lethal injection, Utah may begin using firing squads to kill death-row inmates.

    In The New York Times, Adam Liptak writes that the Supreme Court may review an Alabama law that allows judges to override a jury’s sentencing recommendation in death penalty cases.

  • March 7, 2015
    Guest Post

    by Rob Weiner, formerly Associate Deputy Attorney General In the United States Department of Justice, is a partner at Arnold & Porter LLP. This post first appeared at Balkinization.

    During the Supreme Court oral argument in King v. Burwell, the challengers persisted in claiming that the language of the Affordable Care Act is absolutely clear, that the principle of constitutional avoidance, as well as Chevron deference and any other relevant interpretive presumptions are unavailing because there is one and only one possible interpretation of the key provision at issue, Section 36B of the Internal Revenue Code.  That is in fact what the challengers must show—that their reading of the statute to deny subsidies in States with Federal Exchanges is incontrovertible. 

    But four Justices (apparently), the IRS, the Solicitor General, 22 States, and leading academic experts in statutory interpretation applying the definitions in the Act have read this same language to mean that tax subsidies are available in all States.  They have drawn this conclusion from the text of the Act itself, not by rewriting the language to promote the statutory purpose, but by giving it what they have concluded is a reasonable—in fact, compelling—interpretation.  Of course, the fact of a dispute regarding the meaning of statutory provisions does not by itself show the issue to be contestable.  But here, there is a critical mass of able, respected readers of the statute who differ with the challengers’ conclusion.  To label the interpretation by these readers as impossible, at odds with the English language, or nonsensical is to deny either their literacy or their candor.  Neither is in doubt. 

    As Justice Kennedy suggested during the argument, the clarity of the statute is also measured against the constitutional requisites of cooperative federalism.  That is another reason the Government should prevail in King.  As the challengers read the law, residents of States that fail to set up insurance Exchanges do not receive tax subsidies to help them afford health insurance, but those States remain subject to the insurance market reforms requiring insurance companies to offer insurance without regard to preexisting conditions and to price insurance based on community characteristics rather than the individual customer’s health situation.  If adopted, the challengers’ interpretation would send insurance markets in those States into a death spiral and impose hardships on millions of people.