The Future of the Affordable Care Act – National Constitution Center

April 5, 2019

Last week, the Department of Justice surprised many by reversing its position on the Affordable Care Act—stating that it agrees with U.S. District Judge Reed O’Connor that the ACA is unconstitutional, and won’t defend the law. Judge O’Connor’s December 2018 decision in Texas v. United States held that because the tax penalty that enforced the individual mandate had been reduced to $0 in Congress’s 2017 tax reforms, the rest of the ACA could not stand. The House of Representatives, along with several states, has intervened in the case to defend the ACA. Joining host Jeffrey Rosen to break down the case and the legal and constitutional arguments on both sides are ACA experts Abbe Gluck of Yale University and Tom Miller of the American Enterprise Institute.

via The Future of the Affordable Care Act – National Constitution Center


If The Court Strikes Down Obamacare, How Bad Would That Be? – Goodman Institute for Public Policy Research

April 5, 2019

The Trump administration has decided to challenge the constitutionality of the Affordable Care Act (Obamacare) in court. Some Republicans in Congress and even some in the administration resisted this decision. Critics assume that if there is no Obamacare, we would revert to the pre-Obamacare health system. If so, how bad would that be?

via If The Court Strikes Down Obamacare, How Bad Would That Be? – Goodman Institute for Public Policy Research


What Happens if Obamacare Is Struck Down? – The New York Times

April 5, 2019

“The Affordable Care Act touches the lives of most Americans. Some 21 million could lose health insurance if the Trump administration were to succeed in having the law ruled unconstitutional.”

via What Happens if Obamacare Is Struck Down? – The New York Times

Editor’s note: this article summarizes what Obamacare critic John Goodman has characterized as “Democratic talking points.” That said, it is a useful codification (and quantification) of the key concerns the law’s defenders have about its potential demise.


AEI Event | Sense and severability: If one part of the Affordable Care Act is ruled unconstitutional, what is the proper remedy or resolution?

February 16, 2019

On December 14, a federal district court in Texas ruled that the current version of the Affordable Care Act’s (ACA) individual mandate was unconstitutional. This is a link to two panel discussions on the often-overlooked law of severability and what might happen to the rest of the ACA if that finding holds up on appeal.The first panel discussed the current state of severability, how consistently it is applied, and whether there are possible alternatives that could improve it. The second panel discussed how severability law should be applied properly as this case advances. If an appellate court upholds the district court decision on constitutional issues, it still must decide what to do next. The primary options including striking down only the individual mandate (full severability), severing other functionally linked ACA insurance regulation provisions (partial severability), and finding that the entire ACA cannot be sustained.

Source: Sense and severability: If one part of the Affordable Care Act is ruled unconstitutional, what is the proper remedy or resolution?


After All These Years, Lochner Was Not Crazy — It Was Good by Randy E. Barnett :: SSRN

January 2, 2019

For this year’s Rosenkranz Debate, we have been asked to debate the question: Lochner v. New York: Still Crazy After All These Years? It is my job to defend the “negative” position. My burden is not to establish that Lochner was correctly decided, but merely that it was not “crazy.” I intend to meet that burden and exceed it. I intend to show how Lochner v. New York was not at all crazy; in fact, it was a reasonable and good decision.

via After All These Years, Lochner Was Not Crazy — It Was Good by Randy E. Barnett :: SSRN


Substantial Shifts in Supreme Court Health Law Jurisprudence by Lawrence O. Gostin, James G. Hodge :: SSRN

October 18, 2018

President Trump’s nomination of jurist Brett Kavanaugh to the U.S. Supreme Court presents significant, potential changes on health law and policy issues. If confirmed by the U.S. Senate, Kavanaugh’s approaches as a federal appellate court judge and scholar could literally shift the Court’s balance on consequential health policies. Judge Kavanaugh has disavowed broad discretion for federal agency authorities, cast significant doubts on the constitutionality of the Affordable Care Act, and narrowly interpreted reproductive rights (most notably abortion services). He has supported gun rights pursuant to the Second Amendment beyond U.S. Supreme Court recent interpretations. His varying positions related to consumer protections, environmental regulation, and antidiscrimination protections lend further to major concerns on the maintenance of settled positions of the Court on these and other critical health issues.

via Substantial Shifts in Supreme Court Health Law Jurisprudence by Lawrence O. Gostin, James G. Hodge :: SSRN


How A Bill Keeps Becoming A Law(suit) | Tom Miller

March 17, 2018

The only consistent characteristic of the Affordable Care Act (ACA) is its ability to generate litigation. The gift that keeps on giving for Obamacare opponents seems to defy common law doctrines curbing the practices of champerty and maintenance (frivolous lawsuits).

via How A Bill Keeps Becoming A Law(suit) | Economics21