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 […]
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 […]
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 […]
Apologies: This is a quick post; I’m traveling this week. Summers in the D.C. Circuit are busy. And it is now summertime. We have eleven opinions this week. Before getting to those cases, however, I want to discuss an update on a case that bounced around within the D.C. Circuit for a while before it […]
Since the Trump era began more than two years ago with the election of 2016, the administration has put into place an increasingly draconian legal regime of restrictions against immigrants. Navigating these outrageous examples of executive overreach has been challenging. The current administration has attempted to cloak the new restrictions under the guise of quasi-legality. […]
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 […]
When President Obama nominated Chief Judge Garland to the Supreme Court, I put together a list of his dissents and concurrences. As I explained then: President Trump has just nominated Judge Brett Kavanaugh to the Supreme Court. With the help of two hard-working research assistants* I’ve put together a similar list for him. Note that […]
This morning, HHS released two rules that will allow many more employers to exclude contraception from the insurance plans they offer to their employees. The first expands an existing religious exemption; the second allows employers to exempt themselves by invoking a freestanding “moral objection.” As I explained when a draft of the rules first leaked, […]
This past week Washington state jumped into the fight against President Trump’s executive order limiting immigration, filing suit in district court in Washington. The district court issued a nationwide temporary stay of the order, and the United States has now appealed to the Ninth Circuit. One of the major issues in the case is whether […]
There are no D.C. Circuit opinions this week, but even so, we live in interesting times — especially in the world of administrative law. Right now, President-elect Trump is putting together his slate of cabinet nominees, Congress is paying close attention to the Congressional Review Act, and Chief Judge Garland is preparing to return to […]