Notice & Comment

Results for: waivers

Notice & Comment

The Administration’s Recent Guidance on State Innovation Waivers under the Affordable Care Act Likely Violates the Act’s Statutory Guardrails, by Joel McElvain

The Affordable Care Act reformed the individual health insurance market to protect persons with pre-existing conditions. Insurers who participate in this market must sell plans with a standard set of comprehensive benefits, and may not deny coverage to, or impose higher premiums on, persons with pre-existing conditions. Through legislative, regulatory, and litigation efforts, the Trump […]

Notice & Comment

My ACUS Report: Waivers, Exemptions, and Prosecutorial Discretion

I’m pleased to announce that the Administrative Conference of the United States has recently posted a report I was commissioned to author. The report “draws conceptual distinctions among waivers, exemptions, and prosecutorial discretion; examines current practices in agencies that grant waivers and exemptions; reviews statutory and doctrinal requirements; and makes concrete procedural recommendations for implementing […]

Notice & Comment

Can the courts stop ACA waivers from taking effect?

Iowa has submitted a waiver proposal under section 1332 of the Affordable Care Act that, if granted, would radically reshape its individual insurance market; Oklahoma may soon do the same. Both states have been accused of relying on some magical numbers, and Iowa’s waiver appears to violate the ACA’s guardrails, which require states to assure […]

Notice & Comment

Waivers are dead, long live waivers

At 10pm on Thursday, the Senate finally released a “repeal” bill—the Health Care Freedom Act—that may have the votes to pass. If you’ve been following the reporting, it’s mostly as expected. The bill repeals the individual mandate, delays the employer mandate until 2025, delays the implementation of the medical device tax until 2021, and defunds […]

Notice & Comment

Waivers and the future of repeal and replace

Over at National Review, Yuval Levin argues that a Republican consensus over repeal and replace might slowly be emerging: It now seems that the familiar debates about tax credits vs. deductions and even about spending levels aren’t exactly where the dividing lines are in the House conference. Rather, … the Freedom Caucus Republicans want to […]

Notice & Comment

Returning Attention to State ACA and Medicaid Waivers

Now that the potential repeal of Obamacare is off the table (at least for a while), it’s worth turning attention (by all stakeholders) to one of Obamacare’s provisions crafted to accommodate approaches advocated across the political spectrum as well as the balance between local and national scale: Section 1332 State Innovation Waivers and Section 1115 […]

Notice & Comment

Due Process Waivers in Immigration Law

The Trump Administration’s immigration law policies are shining new light on the due process gaps in immigration law. In addition to the due process issues raised by his travel ban, President Trump’s new policies on expedited removal raise legal questions about the absence of process in immigration law. There is another due process gap that […]

Notice & Comment

Society for Benefit-Cost Analysis 2023 Annual Conference on March 9-10 (DC) and 13-14 (Zoom)

The Society for Benefit-Cost Analysis will hold its annual meeting in-person on March 9-10 and online on March 13-14. As in the past, there are many sessions pertaining to the use of benefit-cost analysis in regulation and regulatory decision making that those who study administrative law will find useful. Those include: Regulatory Policy in the United States: […]

Notice & Comment

Biden’s Student Debt Cancellation: The Perils of Policy without Procedure, by William Yeatman and Michael Poon

Last week, Pacific Legal Foundation (where we work) filed an amended class action complaint challenging the Biden Administration’s plan to cancel up to $519 billion in federally held student debt. The short history of our suit sheds light on the program’s shambolic implementation.   After announcing the policy, the Education Department created a website to […]

Notice & Comment

Final Agency Action on Student Loan Forgiveness: Whether, When, and How Will (and Should) it Come?

In August, the Biden Administration announced its plan for student loan forgiveness outside of the recently expanded Public Service Loan Forgiveness program. In the debate over the this new program’s lawfulness, a common argument is that the program’s critics have been too hasty. They should wait, it is argued, for the Department of Education’s final […]

Notice & Comment

The Sixth Circuit Conjures Phantom Regulations

A few decades ago, various federal trial and appellate courts adopted an odd approach towards tax statutes that call for Treasury regulations but for which no regulations had been issued. These courts decided that they would not wait for the Treasury to act. Instead, they would apply the statutes without regulations. In doing so, they […]

Notice & Comment

The Supreme Court’s “Exceptional” Term, by Cary Coglianese, Gabriel Scheffler, and Daniel E. Walters

Much has been made about how to characterize the Supreme Court’s recently finished October 2020 term. Some have suggested it was relatively quiet, especially compared to the heavily anticipated October 2021 term, while others have highlighted potentially important decisions, such as Brnovich and TransUnion, that could fundamentally reshape the law, depending on how they are […]

Notice & Comment

What should Biden do about Medicaid work requirements?

I’ve got a new article out at The Atlantic digging into that surprisingly thorny question. At stake here is whether the Biden team can move quickly enough to forestall the Supreme Court from deciding two pending cases involving work requirements in Arkansas and New Hampshire. It’ll be tricky, in part because of some last-minute shenanigans to […]