Tag Archives: ACA

Repealing Economic Substance Codification and Replacing It With What?

by Daniel Hemel — Monday, Feb. 20, 2017

The Republican effort to repeal the Affordable Care Act appears to be stalling. If and when it picks up again, the fate of section 7701(o) of the Internal Revenue Code will be far from the most consequential issue at stake. But section 7701(o), the provision added by the ACA that codifies the tax law economic […]

The D.C. Circuit Boots Another ACA Lawsuit

by Nicholas Bagley — Monday, July 4, 2016

Last Friday, the D.C. Circuit rejected West Virginia’s challenge to the so-called “like it, keep it” fix, which told the states that they could temporarily decline to enforce the ACA’s new insurance rules against their insurers. (Background here.) I’m sympathetic to West Virginia’s underlying legal claim. It was unlawful, in my judgment, for the Obama […]

Did the Court Get it Right in House v. Burwell? By Nicholas Bagley

by Nicholas Bagley — Thursday, June 2, 2016

I have a new piece at the New England Journal of Medicine siding with the district court on the merits of the appropriations dispute between the House of Representatives and the Obama administration. Here’s a taste:2 The problem with the administration’s argument is that, by statute, a law “may be construed to make an appropriation […]

Don’t Panic About House v. Burwell, by Nicholas Bagley

by Nicholas Bagley — Tuesday, May 17, 2016

Don’t panic about House v. Burwell. From the New York Times on what might happen if the House prevails in House v. Burwell: A study by the Department of Health and Human Services estimated that premiums for midlevel “silver plans” could rise by nearly 30 percent without [cost-sharing] reimbursements. Many consumers would be protected, since […]

A Government Defeat in House v. Burwell

by Nicholas Bagley — Friday, May 13, 2016

Having previously held that the House of Representatives has standing to sue, the district court in House v. Burwell has now held that the Obama administration is violating the Appropriations Clause in making cost-sharing payments under the ACA in the absence of the requisite congressional appropriation. The court has stayed its decision pending appeal, meaning […]

A Massive Class Action over Risk Corridors

by Nicholas Bagley — Thursday, Feb. 25, 2016

From the Portland Tribune: Health Republic Insurance Company of Oregon, a Lake Oswego-based insurer that is phasing down its operations, on Wednesday filed a $5 billion class action lawsuit on behalf of insurers it says were shorted by the federal government under an Obamacare program. The lawsuit, filed in the United States Court of Federal […]

The Briefs in House v. Burwell

by Nicholas Bagley — Friday, Feb. 12, 2016

To follow up on yesterday’s update on House v. Burwell, I thought it might be useful to post the briefs accompanying the cross-motions for summary judgment. To my knowledge, they haven’t been made publicly available elsewhere: House’s Opening Brief. Burwell’s Opening Brief. House’s Opposition Brief. Burwell’s Opposition Brief. House’s Reply Brief. Burwell’s Reply Brief.

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An Update on House v. Burwell

by Nicholas Bagley — Thursday, Feb. 11, 2016

In House v. Burwell news, the Obama administration and the House of Representatives have each filed their final briefs on whether Congress has supplied an appropriation for the cost-sharing subsidies. The government has requested oral argument in the case, but a hearing date has yet to be scheduled. What happens when and if the court […]

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Legal Limits and the Implementation of the Affordable Care Act

by Nicholas Bagley — Monday, Jan. 25, 2016

I’ve got a new essay coming out as part of a symposium on executive power at the University of Pennsylvania Law Review. Here’s the intro: Accusations of illegality have dogged the Obama administration’s efforts to implement the Affordable Care Act, the most ambitious piece of social legislation since the advent of Medicare and Medicaid. Some […]

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Yet Another Illegal ACA Tax Regulation

by Andy Grewal — Thursday, Oct. 8, 2015

I have previously written about various IRS regulations that contradict the clear language of tax code Section 36B. I recently re-examined the regulations and was only mildly surprised to find another provision that plainly exceeds the IRS’s rulemaking powers. Here, the IRS has simply discarded the statute’s joint return requirement for a segment of taxpayers […]

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