Author Archives: Nicholas Bagley

The Rise of the Know-Nothing Judge

by Nicholas Bagley — Monday, July 15, 2019

That’s the headline of a new piece of mine in the Atlantic. It focuses on the oral argument before the Fifth Circuit in Texas v. United States, and the apparent willingness of two Republican-appointed judges to entertain seriously the notion of invalidating the entire ACA. How did it come to this? What the hell is […]

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Silver bullets, blue pencils, and the future of the ACA

by Nicholas Bagley — Wednesday, July 10, 2019

Yesterday, the Fifth Circuit heard oral argument in Texas v. United States. It was pretty brutal: consistent with the reporting, the two Republican-appointed judges on the panel appeared receptive to the argument that the Affordable Care Act should be declared invalid. (The Democrat-appointed judge was silent.) Just how receptive is hard to say, and it’s […]

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Background on Texas v. United States

by Nicholas Bagley — Monday, July 8, 2019

The Fifth Circuit will hear oral argument tomorrow in Texas v. United States, a sweeping challenge to the Affordable Care Act arising out of Congress’s decision, in late 2017, to eliminate the penalty for going without insurance. The case should never have been taken seriously. The red states that brought the suit don’t have standing […]

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The Justice Department’s New Brief in Texas v. United States

by Nicholas Bagley — Thursday, July 4, 2019

Last week, the Fifth Circuit asked the parties to Texas v. United States—the broadside challenge to the constitutionality of the Affordable Care Act—to submit letter briefs on whether anyone had standing to appeal. (Jonathan Adler has offered excellent analysis of that order here.) Though the briefs won’t all be filed until Friday, the Justice Department […]

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The Supreme Court Will Hear the Risk Corridor Cases

by Nicholas Bagley — Monday, June 24, 2019

In a surprise, the Supreme Court agreed this morning to hear cases arising out of the risk corridor mess. At issue is $12 billion in federal money, and the case’s outcome will hinge on what Congress meant when it placed limits on the use of appropriated funds in an effort to sabotage the Affordable Care […]

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On Gundy and the Nondelegation Doctrine

by Nicholas Bagley — Friday, June 21, 2019

“On Thursday, the conservative wing of the Supreme Court called into question the whole project of modern American governance.” So opens an op-ed of mine at the New York Times. Because Justice Kavanaugh was recused from the case, the conservative wing was deprived of a potential fifth vote. But that vote may come: Judging from […]

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Would it be legal to block grant Medicaid?

by Nicholas Bagley — Wednesday, May 8, 2019

I don’t know, and I doubt the Trump administration does either. But we may soon find out. With the Trump administration’s encouragement, Tennessee is moving ahead with a waiver to block grant its Medicaid program under section 1115 of the Social Security Act.  “Currently,” as Stephanie Armour explains at the Wall Street Journal, “Tennessee, like […]

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A motley crew in Texas v. Azar

by Nicholas Bagley — Tuesday, Apr. 2, 2019

Together with Jonathan Adler, Abbe Gluck, and Ilya Somin, I’ve filed an amicus brief with the Fifth Circuit in Texas v. Azar. Those of you who’ve been closely following health-reform litigation know that Abbe and I often square up against Jonathan and Ilya. It’s a testament to the outlandishness of the district court’s decision that […]

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Why Trump’s New Push to Kill Obamacare Is So Alarming

by Nicholas Bagley — Wednesday, Mar. 27, 2019

That’s the headline of my op-ed at the New York Times from this morning. Here’s an excerpt: [T]he Trump administration has signaled loud and clear that its campaign against Obamacare is not over; that it will stop at nothing to achieve in court what it could not achieve in Congress; and that it doesn’t care […]

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The Trump Administration Now Thinks the Entire ACA Must Fall

by Nicholas Bagley — Monday, Mar. 25, 2019

In a stunning, two-sentence letter submitted to the Fifth Circuit today, the Justice Department announced that it now thinks the entire Affordable Care Act should be enjoined. That’s an even more extreme position than the one it advanced at the district court in Texas v. Azar, when it argued that the court should “only” zero out the protections for people […]

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