Author Archives: Nicholas Bagley

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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The Procedure Fetish

by Nicholas Bagley — Thursday, Mar. 7, 2019

That’s the title of a new article of mine, slated for publication in the Michigan Law Review. It’s more polemical than most of my work, and it aims to disrupt some of the tidy stories that organize modern administrative law. Although I hope it finds an audience across the political spectrum, its primary target is […]

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The United States Owes Tens of Billions, Says the Court of Federal Claims (Part 2).

by Nicholas Bagley — Tuesday, Feb. 19, 2019

In yesterday’s post, I canvassed the latest decisions from the Court of Federal Claims in the fight over whether insurers can recover cost-sharing payments. Three different judges have now concluded—rightly, in my view—that the United States has breached its payment obligation and must pay damages. The harder question is how to calculate those damages. Should […]

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The United States Owes Tens of Billions to Insurers

by Nicholas Bagley — Monday, Feb. 18, 2019

The litigation to recover cost-sharing money has heated up in the Court of Federal Claims, with potentially enormous consequences for the public fisc. Three federal judges have now concluded that the United States is liable to insurers for missed cost-sharing payments. If their decisions stand, insurers could recover roughly $12 billion a year, every year, […]

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Blocking the Trump administration’s contraception rules (again).

by Nicholas Bagley — Monday, Jan. 14, 2019

Yesterday evening, a California federal judge enjoined the Trump administration from enforcing two rules that would greatly expand the exemptions to the Affordable Care Act’s contraception mandate. The injunction applies only in the plaintiff states, which include California, New York, Virginia, and ten others, as well as Washington, D.C. I’ve written extensively about these rules, […]

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