Archive | Health Care

Notre Dame Refiles Suit Against Contraception Mandate “Compromise”

Yesterday, the University of Notre Dame re-filed its lawsuit challenging the contraception mandate “accommodation” offered to religious institutions by the Department of Health and Human Services. Notre Dame had filed suit before, but that suit was dismissed as the Administration had announced plans to adopt an accommodation for objecting religious institutions. The WSJ reports on the suit here.

As I noted in prior posts (here and here), the Administration had a difficult time finding a way to accommodate the objections to the contraception mandate of religious institutions, including universities and social service organizations, that are not themselves houses of worship or their auxiliaries. The accommodation ultimately offered by HHS is that if a religious institution objects to paying for insurance coverage that covers methods of contraception that are contrary to the teachings of that religion, the institution may certify that it objects, and then the institution’s insurer will provide a separate contraception-only insurance policy. The problem for an institution like Notre Dame, as detailed in its complaint, is that it self-insures. (Many large institutions self-insure, and many religious ones do so, in part, to avoid state-level contraception mandates.) To address this, the final accommodation shifted the obligation to the third-party administrator of the insurance plan. Assuming this shift of obligation is even legal (as the administrator is not acting as an insurer, and has to provide the contraception at no cost to the insured), Notre Dame still objects because the provision of contraception is still tied to Notre Dame’s decision to provide insurance in the first place and Notre Dame’s decision to certify that it is an objecting institution results in the designation of the third-party administrator as the provider of contraception. According to Notre Dame, this requires the university to “become entangled with and facilitate” [...]

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Upcoming Event on A Conspiracy Against Obamacare

Co-bloggers Randy Barnett, Orin Kerr, and I will be speaking at an upcoming event at the Heritage Foundation in Washington, DC on our recently published book A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case, which details ours and the VC’s role in developing the arguments in the Supreme Court’s Obamacare decision (the book is also coauthored with Jonathan Adler, David Bernstein, and David Kopel). The book’s editor, Trevor Burrus of the Cato Institute, will also speak at the Heritage event.

The event will be held on December 10, from 12 to 1 PM. More information, including how to RSVP, here.

And see here for a review of the book by constitutional law scholar Rob Natelson. [...]

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Another ObamaCare Delay: SHOP Exchange Enrollment

Politico reports:

The Obama administration today announced a one year delay of online enrollment for small businesses looking to purchase health coverage through federal Obamacare exchanges, another high-profile setback for

It’s the second delay for online small business enrollment, which the administration had said would begin this month. . . .

The administration originally delayed online enrollment in the federal-run small business exchanges just days before the failed Oct. 1 launch of At the time, HHS said online enrollment would be available “sometime in November.” But now, it won’t be ready until November of next year.
The latest delay applies only to the federal-run SHOP exchanges in almost three dozen states. With a few exceptions, SHOPs in states running their own exchanges have had a smoother rollout.

Wonkblog has more. [...]

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Supreme Court to Hear Two Contraception Mandate Cases

This morning the Supreme Court agreed to hear two cases in which for-profit corporations are challenging the so-called “contraception mandate” under which employer-provided group health insurance plans are required to fully cover all FDA approved forms of contraception and sterilization.  The two cases accepted for review are Sebelius v. Hobby Lobby Stores, Inc., in which the U.S. Court of Appeals for the Tenth Circuit ruled for the employer, and Conestoga Wood Specialties Corp. v. Sebelius in which the U.S. Court of Appeals for the Third Circuit went the other way. Both appeals principally involve free exercise of religion claims under the Religious Freedom Restoration Act (RFRA).

The Tenth and Third Circuits are not the only appellate courts to have confronted the underlying RFRA claims, including the question whether a corporation may assert free exercise claims under RFRA. The U.S. Court of Appeals for the Sixth Circuit rejected a corporation’s free exercise claim in Autocam Corp. v. Sebelius. The U.S. Court of Appeals for the Seventh Circuit held for the corporate plaintiffs in Korte v. Sebelius and the U.S. Court of Appeals for the D.C. Circuit ruled against the mandate, on behalf of the owners of a closely held corporation but not the corporation itself, in Gilardi v. U.S. Department of Health and Human Services. [...]

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The Obamacare Fix’s Legality, State Law and Standing

I have a piece in POLITICO discussing the constitutional problems with the ObamaCare fix, which have been previewed here before. One aspect is whether state officials can ignore ObamaCare and instead apply “The Fix.” Regardless of the discretion President Obama has, state officials do not have enforcement discretion over federal law. It is just supreme, and even if the president ignores it, state officials can not.

Unlike prior exercises of presidential enforcement discretion, the fix depends on states violating federal law. That is because it does not change the law on the books. Rather, the feds are simply signaling that they will not enforce certain provisions for some time.

But many parts of Obamacare do have to be applied by states, the traditional front lines of insurance regulation. States, however, lack “enforcement discretion” when it comes to ignoring federal law, even when the president thinks it would be a good idea. As the president has often reminded us, the ACA is “the law of the land,” and remains so after the fix.

The Constitution’s Supremacy Clause makes federal law—not presidential policies— binding on the states. So what’s a state insurance commissioner to do? Federal law requires health plans to have a mandatory level of “minimum coverage.” Thus it is not clear how a state insurance commissioner can authorize a plan that violates federal law.

But state officials may encounter the ACA in different ways. In some states, it will have the general preemptive force of federal law. So states that authorize non-compliant plans pursuant to the Fix would be in conflict with federal law.

A more interesting scenario involves states that have passed “conforming legislation” to “domesticate” the ACA to make it more convenient to enforce. In such states, the ACA is both federal and state law, and at the [...]

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Another Illegal ObamaCare Fix?

With still not working the way it is supposed to — and large portions of the “back office” functions yet to be completed — the Administration is preparing another fix: Allowing consumers to purchase qualified insurance plans directly from insurers with the benefit of the subsidies that are only supposed to be available through state-based exchanges.  The law’s language is quite clear on this.  Up until now, the Administration had argued that the subsidies can be provided through federal exchanges (and not just those “established by a state” as specified in the PPACA’s text), but now it may argue that exchanges are not required at all.  Further, as Megan McArdle notes, the law quite clearly excludes insurance companies from performing exchange functions.  Once again, the Administration appears to be breaking the law to save it. [...]

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More on the Legality of the Latest ObamaCare Fix

Last Thursday, the President announced a change in Administration policy designed to ensure that those who like their health insurance plans will be able to keep them for at least one more year, despite the legal requirements of the PPACA and its implementing regulations.  On Friday, I explained the President lacks the authority to waive the Act’s requirements, or even to set aside duly promulgated regulations, and could not make noncompliant health insurance plans legal under the PPACA.  All the President can do is to declare that the federal government will not enforce the PPACA’s requirements against insurers for renewing noncompliant plans.  The President’s announcement does not bind state insurance commissioners, however, nor does it overcome the legal jeopardy health insurers could face should they agree to renew such plans and enforce any terms that have been declared illegal under the PPACA.

The University of Michigan’s Nicholas Bagley is certainly more sympathetic to the PPACA than am I, but he is no more convinced of the legality of the President’s purported “fix.”  In a post on The Incidental Economist, he explains why he doubts whether the President’s assertion of enforcement discretion “works.”

The administration’s claim rests on an expansive reading of Heckler v. Chaney, an important Supreme Court decision from 1985. In Heckler, the Court held that agencies have wide discretion to decide whether, when, and how to enforce the law. No agency, the Court explained, has enough resources to police every technical legal violation. Instead, agencies must set priorities based on a host of factors—the harm caused by the violation, the likelihood of prevailing, the need to conserve scarce resources, and the like. Courts shouldn’t second-guess how an agency weighs all those factors. Enforcement, in the legal jargon, is “committed to agency discretion by law.”

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The Legality of the Latest ObamaCare Fix

Yesterday, the President announced a purported fix to the problem that, under the PPACA, insurance companies are not allowed to renew policies that fail to comply with PPACA requirements, even if consumers like their existing plans. This was not an accident. Forcing all health insurance policies to comply with federal minimum requirements was a key part of the law, and regulations implementing the relevant provisions ensured many plans could not be renewed. As the WSJ reported, the White House always knew that not everyone who liked their health insurance would be able to keep it, even if some thought most affected consumers would be happy to be forced to obtain “better” plans.

According to the President’s announcement, insurance companies will be allowed to renew policies that were in force as of October 1, 2013 for one additional year, even if they fail to meet relevant PPACA requirements. What is the legal basis for this change? The Administration has not cited any. (See, e.g., this letter to state insurance commissioners explaining the change.) According to various press reports, the Administration argues it may do this as a matter of enforcement discretion (much as it did with immigration). In other words, the Administration is not changing the law. It’s just announcing it will not enforce federal law (while simultaneously threatening to veto legislation that would authorize the step the President has decided to take).

Does this make the renewal of non-compliant policies legal? No. The legal requirement remains on the books so the relevant health insurance plans remain illegal under federal law. The President’s decision does not change relevant state laws either.  So insurers will still need to obtain approval from state insurance commissioners. This typically requires submitting rates and plan specifications for approval. This can take some time, and [...]

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The Constitutionality of the ObamaCare “Fix”

President Obama in his speech on “fixing” the Affordable Care Act today did not specify what statutory authority, if any, he thinks authorizes him to make such dictats. Given the gargantuan length of the ObamaCare statute, he might still be looking. Press reports say the President is claiming a broad “enforcement discretion.”

It is true that the Chief Executive has some room to decide how strongly to enforce a law, and the timing of enforcement. But here, Obama is apparently suspending the enforcement of a law for a year – simply to head off actual legislation not to his liking. Congress is working on legislation quite similar to the president’s fix, but with differences he considers objectionable. This further demonstrates the primarily legislative nature of the fix.

Indeed, the fix goes far beyond “non-enforcement” because it requires insurers to certain new action to enjoy the delay. This is thus not simply a delay, but a new law.

The “fix” amounts to new legislation – but enacted without Congress. The President has no constitutional authority to rewrite statutes, especially in ways that impose new obligations on people, and that is what the fix seems to entail. And of course, this is not the first such extra-statutory suspension of key ObamaCare provisions.

UPDATE: Here is the text of the administration’s letter describing the fix. [...]

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The Impact of the Volokh Conspiracy on the Obamacare Litigation

Part of my concluding essay in my new book, A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case (coauthored with VC co-bloggers Randy Barnett, Jonathan Adler, David Bernstein, Orin Kerr, and David Kopel) deals with the impact of the VC and the blogosphere on the case. Here is an excerpt:

What role did the Volokh Conspiracy play in the legal battle over Obamacare? It is easy to identify two polar-opposite views on the subject: that our influence was decisive, and that it made no real difference at all. A March 2012 article in the Atlantic claimed that “[b]logs — particularly a blog of big legal ideas called Volokh Conspiracy — have been central to shifting the conversation about the mandate challenges.” On the other hand, Yale Law School Professor Jack Balkin argues that “the single most important factor in making the mandate opponents’ constitutional claims plausible was strong support by the Republican Party, including its politicians, its affiliated lawyers, and its affiliated media.” The support of the GOP was the main factor giving credence to a position that was “in the view of most legal professionals and academics, simply crazy.”

In my view, the truth is somewhere in between. Balkin’s emphasis on the role of the GOP has considerable validity. If Obamacare and the individual mandate had enjoyed broad bipartisan support, it is highly unlikely that the Supreme Court would have even come close to striking them down….

But such political factors are only a partial explanation of what happened. We should remember that the ACA was far from the only Obama policy that was bitterly opposed by the GOP. Republicans were just as strongly united in opposition to other administration initiatives such as the 2009 stimulus bill. At least with respect to the stimulus, there was

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Upcoming Josh Blackman Presentation on his book Unprecedented at George Mason University School of Law

This Wednesday from 5 to 6 PM, South Texas College of Law Professor Josh Blackman will be doing a presentation on his book Unprecedented: The Constitutional Challenge to Obamacare at George Mason University School of Law. In addition to being a highly successful young legal academic, Josh is also a prominent blogger, and a GMUSL graduate.

The event is sponsored by the GMU School of Law Students for Liberty (for which I am the faculty adviser), and will take place in Hazel Hall, Rm. 121. I will briefly comment on Josh’s book after his presentation, and he will have an opportunity to reply. I reviewed the book here. Although I have several disagreements with Josh’s analysis of the case, his book is a great read and is the closest thing to a definitive blow-by-blow account of the Obamacare litigation that we have so far. [...]

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A Poor Rationale for Banning Organ Markets

At National Review, Wesley Smith has a post criticizing a Canadian proposal to pay kidney donors. He supports banning such payments because they would “exploit” the poor:

The drive to turn living human bodies of the poor and destitute into natural resources for the well off continues….

If organs can be purchased like a steak at a butcher shop, only the desperate poor will sell (and perhaps, unemployed college grads with a lot of student debt). It’s that simple–and exploitive.

It’s far from clear that only “the desperate poor” would sell kidneys in a legal organ market. But even if this assumption is correct, it is not clear why the poor would be better off if denied the right to sell kidneys in this way. Presumably, those poor people who would sell their kidneys value the money more than having a second kidney. Given that living with one kidney creates very little added health risk, this is an entirely rational and understandable choice. Denying the poor this option makes them worse off, not better.

If we must ban kidney markets because allowing poor people to take the risk of living with only one kidney is “exploitive,” why should we not also ban poor people from taking dangerous jobs as loggers, coal miners, police officers, firefighters, and NFL players? These and other occupations involve far greater health risks than donating a kidney. And they are often especially attractive to “the desperate poor,” precisely because poor people are more likely to be willing to take risks in order to increase their wealth than the relatively affluent. Furthermore, if “exploitation” of the poor is really the reason for banning organ sales, why not ban such sales by people below a certain income threshold, but permit them if the sellers are [...]

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Judge Rejects DoJ Motion to Dismiss Second Suit Against IRS Tax Credit Rule

This morning, U.S. District Court Judge Paul Friedman denied the federal government’s motion to dismiss in Halbig v. Sebelius, a suit challenging the legality of an IRS rule authorizing tax credits for the purchase of health insurance on federally run exchanges.  This suit is one of four challenging the IRS rule.  With today’s ruling, the federal government is batting 0-2 in its efforts to dismiss these challenges. A federal district court judge in Oklahoma likewise denied a motion to dismiss in August.

The IRS rule contravenes the plain text of the PPACA, as the statute only authorizes tax credits (and subsidies) for the purchase of insurance in an exchange “established by a state” under Section 1311 of the law.  Federal exchanges are neither “established by a state” nor authorized by Section 1311. Further, as I detailed in an extensive article with Michael Cannon, there is no legislative history or other evidence to support the federal government’s interpretation of the law.  Supporters of the IRS rule claim that Congress could not have intended that Americans in dozens of states would be unable to obtain tax credits to help them purchase insurance. They’re right. Congress intended for every state to create its own exchange, as PPACA supporters said time and again, but states refused. Now that their assumption has been proven wrong, this does not provide an excuse to rewrite the plain statutory text.

The nature of the “mistake” is similar to what we see in other areas of the law. For instance, Congress did not intend for people below poverty line to be without subsidized insurance. Yet that is clearly the result in states that refuse to expand Medicaid because the tax credits and subsidies are only available to people at or above the poverty line. This income floor for [...]

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The Shutdown and the Legal Future of Obamacare (Updated)


Here’s an angle on the late government shutdown that I haven’t seen anywhere else: it was crucial to the potential success of the ongoing lawsuits over Obamacare. I haven’t followed the lawsuits all that carefully, but I think at least the challenge to the subsidies for federal exchanges is quite serious, legally speaking.

As a political matter, though, if the GOP had taken the establishment’s advice, and treated Obamacare as “the settled law of the land,” subject to repeal only if the Republicans win back the Senate and the presidency, I think that and other lawsuits would have been doomed. If the courts were to decide that some major part of Obamacare is unconstitutional or contrary to statute, it would throw a huge program into chaos. Courts don’t like to do that, and they especially don’t like to do that with settled programs that are well-established and have bipartisan support, or even acquiescence. Put another way, if the political arm of the Republican/conservative movement wasn’t willing to expend political capital to challenge Obamacare, why in God’s name would judges be willing to stick their necks out, regardless of how they feel about the law? But the fact that the GOP was in fact willing to provoke a government shutdown–though let’s be clear that, legally speaking, only the president’s veto power can shut down the government if Congress passes a budget–and take the political heat gives the judiciary all the political cover it needs to do rule in favor of the challengers, if it is otherwise inclined to do so.

So if any of the remaining significant challenges to Obamacare succeed, you can thank (or blame) Ted Cruz.

UPDATED: Some commenters seem to be confused about my point here. I’m not (a) saying that this was Cruz’s plan, [...]

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