Author Archives: Nicholas Bagley

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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To Save Obamacare, Repeal the Mandate

by Nicholas Bagley — Friday, Dec. 21, 2018

My colleague Richard Primus and I have an article at The Atlantic offering an idea to the incoming House of Representatives about how to deal with the decision out of Texas invalidating the Affordable Care Act. If congressional intent is the key to O’Connor’s decision, Congress can intervene. And the best way for it to do so is […]

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Two Texas Consultants Don’t Have Standing to Take Down Obamacare

by Nicholas Bagley — Tuesday, Dec. 18, 2018

I’ve got a piece at The Atlantic this morning arguing that Judge O’Connor was wrong—and obviously so—to hear the Texas lawsuit at all. The states don’t have standing to challenge a mandate that doesn’t apply to them. And the two Texas consultants they recruited as plaintiffs don’t have standing either. Here’s the key argument: Nantz […]

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A Texas court has declared the entire ACA unconstitutional

by Nicholas Bagley — Saturday, Dec. 15, 2018

And I’ve got an op-ed in the Washington Post about why the decision is wrong. Here’s a taste: Who cares if a zero-dollar mandate is constitutional or not? Why does it matter in the slightest? And what on earth does it have to do with the rest of ACA? You might have thought that the […]

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