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Seth Chandler, at his indispensable blog, explains that in 2016, there will be far fewer choices, and higher prices at HealthCare.gov. In short, there are fewer PPOs available, forcing people to sign up for HMOs. HMOs offer far less choice for people to choose what doctors to visit. Further, the more generous Platinum and Gold plans are increasing in price far more than the Bronze and Silver Plans. This will shift people into the cheaper plans, with higher deductibles and less coverage. While the ACA avoided an adverse selection death spiral in 2014 and 2015, in 2016 and beyond, certain segments may become too fragile, and prone to adverse selection. This is especially true when insurers subsidies are scheduled to disappear next year.

Here is Seth’s conclusion:

The data shows that platinum plans and PPO plans are shrinking in prevalence and that the gross premiums for such plans are going up. One might say that this development is not so awful since it leaves in place a market for more basic plans: HMO plans for example or silver and gold plans.  Perhaps the government should not be subsidizing individual’s choice of doctors or fostering plans, such as platinum plans, that fail to deter excess medical consumption.  Such is not, however, the promise of the ACA or, I suspect, the desires of many of its proponents.

Moreover, we are in a dynamic situation.  Think about next year when the insurer subsidies are supposed to disappear and when the chronically ill people who were in platinum and/or PPO plans migrate into the next best thing, a gold plan or, if one is available, a POS or EPO plan.  Suddenly those plans become vulnerable to adverse selection pressures.  And for 2017 we might thus expect to see yet further shrinkage of PPO and platinum plans and greater pressures on everything but the basic Bronze and Silver HMO plans.  When that happens, the adverse selection death spiral will not only start biting wealthier purchases or those with chronic conditions, but mainstream America. Private health insurance is fragile. It generally does not well withstand the sort of underwriting regulation imposed by the ACA.  The conceit of the ACA proponents was that they had engineered a system — the “three legged stool” so strong that it could resist the almost invariable pressures of adverse selection.  If I am right, and regardless what one thinks about the motives of those proponents, we are beginning to see that the engineering was just not good enough.

Obamacare’s greatest threat is no longer the courts, but the law itself.

Yesterday, NPR’s All Things Considered aired a segment on the timing of Texas v. United States, including a quote from me.

GONZALES: Even if the Supreme Court gets the case soon, a decision wouldn’t come until June 2016 at the earliest, says Josh Blackman, who teaches constitutional law at the South Texas College of Law. He also filed a brief opposing the president’s executive actions.

JOSH BLACKMAN: I can’t see the judges being in a hurry to get into this mess three months before the general election.

This quote is quite out of context, and seems that I am saying something I didn’t say. I was attempting to explain what would happen if the Fifth Circuit issued its ruling in January or February. Could the Supreme Court expedite the case, and rush briefing, with a May oral argument, so a decision could be made by June 2016? I explained that expedited briefing would be inappropriate because the government didn’t even bother seeking a stay. More importantly, rushing a case to get it done right before the election–when the election very well may decide whether the case is mooted–is inconsistent with the Roberts’ Courts recent practice. A President Rubio will ask the petition to be dismissed, and the case goes away. No need to rush through a major separation of powers decision. I discuss the timing at length here. So no, I am not saying the Justices will delay consideration of the case simply because an election is coming up. My point was that the Justices needn’t rush the case beyond its normal procedures, just to give President Obama a ruling while he is still in office.

Also, the piece made a few others mistakes.The piece said that the 5th Circuit “usually takes 60 days to issue its rulings.” Not even close. As I told the reporter, on average, the court takes about 8 months to resolve cases. In particular here, where the government did not seek a stay from the Supreme Court, there was a signal that this case wasn’t a priority.

This topic is quite frustrating. I’ve done interviews with CNN the New York Times , the Houston Chronicle, now NPR, and others. Each used very similar quotes–that the Supreme Court won’t have time to consider it unless the Fifth Circuit rules quickly–without the appropriate context that the failure to seek a stay means the case needn’t be rushed. Usually the media tries to get things right, but this aspect of the story–some blame on the Obama Administration for not going to the Supreme Court for a stay–has been entirely absent in the coverage.

Update: I previously faulted NPR for saying the 5th Circuit decides cases in about 2 months. This is about the median time it takes for them to resolve cases, but I think that number is quite skewed by straightforward three-to-zero cases. In any event, this case will no doubt have a dissent, and is not on the lower end of the spectrum.

In recent years, President Bill Clinton and other prominent Democrats explained that they supported the Defense of Marriage Act as a means to stop the momentum for a federal constitutional Amendment. However, in an important report from Chris Geidner, we find that there is “no contemporaneous evidence” that anyone in the administration took this view.

The threat of a federal constitutional amendment, these Democrats have argued, motivated them to support DOMA — a law that defined marriage for federal government purposes as between one man and one woman and said states could refuse to recognize same-sex couples’ marriages from others states.

“We were attempting at the time, in a very reactionary Congress,” Bill Clinton told an audience in 2009, “to head off an attempt to send a constitutional amendment banning gay marriage to the states.” Four former senators — including Tom Daschle, who madethe claim in 2011 — raised the idea in a Supreme Court brief in 2013. Clinton later cited that brief when, in a Washington Post op-ed, he called for the law he signed to be struck down by the court. Hillary Clinton just last week called her husband’s decision to sign DOMA “a defensive action.”

There is no contemporaneous evidence, however, to support the claim that the Clinton White House considered a possible federal constitutional amendment to be a concern, based on a BuzzFeed News review of the thousands of documents released earlier this year by the Clinton Presidential Library about same-sex couples’ marriage rights and the Defense of Marriage Act. In the documents, which include correspondence from a wide array of White House and Justice Department officials, no one even hints that Bill Clinton’s thinking or actions regarding DOMA were animated by the threat of a federal constitutional amendment.

…

Through it all, though, no one discussing the bill in the Clinton administration — from the White House senior staff to gay staffers and their strongest allies to the press office to Justice Department lawyers — ever mentioned any concern about a federal constitutional amendment.

 

Regardless of what they thought at the time, Bill and Hillary Clinton have explained, that like President Obama their views evolved.

Charlie Savage reports that the President sought legal advice concerning the Bin Laden Raid from the CIA’s general counsel, the NSC’s legal adviser, the Joint Chiefs’ legal adviser, and the Pentagon general counsel. He did not seek the advice, or even notify Attorney General Holder or the Office of Legal Counsel. This is a remarkable revelation, and speaks to the weakening of the Office of Legal Counsel.

Eric Posner writes:

More interesting, the OLC–which would normally be called upon to render the final opinion–was not included. Not just the OLC, but the entire Justice Department was frozen out. Why? Could it be that the OLC was less than cooperative when the White House sought a legal rubber stamp for the Libya intervention in 2011? Has the OLC been demoted for its insubordination?

Jack Goldsmith adds:

But there is no doubt that OLC’s authority and influence have in general diminished by comparison to prior administrations of both parties.  Many people who would know have told me that OLC’s advice is now sought much less than in the past, especially in national security decisions.  A few people have told me that OLC simply has no place at the table in important national security decisions.  And now today, Charlie Savage reports, in an article derived from his forthcoming book, that the Obama administration gave the President legal advice about the 2011 Bin Laden operation in deep secrecy that cut out the Attorney General and OLC.

The real news here is that the AG was not told about the Bin Laden raid.  That is very hard to understand or justify.  The failure to consult OLC is only a little less surprising.

…

I know from first and second-hand conversations that some important lawyers in the Obama administration came to Office thinking that OLC had too much sway in prior administrations.   And then the sky did not fall when Attorney General Holder, early in the administration, reportedly overruled an OLC opinion on the unconstitutionality of a D.C. voting rights bill after the Acting Solicitor General advised him he could defend the law in court.

 

I would add to this discussion that the Obama Administration did not seek a formal opinion from OLC concerning the legality of DACA in 2012. Rather they only sought oral advice. This was acknowledged in a cryptic footnote in the 2014 DAPA memorandum, which suggests some of the internal tensions within the Obama administration:

Before DACA was announced, our Office was consulted about whether such a program would be legally permissible. As we orally advised, our preliminary view was that such a program would be permissible, provided that immigration officials retained discretion to evaluate each application on an individualized basis. We noted that immigration officials typically consider factors such as having been brought to the United States as a child in exercising their discretion to grant deferred action in individual cases. We explained, however, that extending deferred action to individuals who satisfied these and other specified criteria on a class-wide basis would raise distinct questions not implicated by ad hoc grants of deferred action. We advised that it was critical that, like past policies that made deferred action available to certain classes of aliens, the DACA program require immigration officials to evaluate each application for deferred action on a case-by-case basis, rather than granting deferred action automatically to all applicants who satisfied the threshold eligibility criteria. We also noted that, although the proposed program was predicated on humanitarian concerns that appeared less particular- ized and acute than those underlying certain prior class-wide deferred action programs, the concerns animating DACA were nonetheless consistent with the types of concerns that have customarily guided the exercise of immigration enforcement discretion.

This oral advice sounds like the President didn’t really care what they had to say. Further, the footnote suggests that OLC was trying to signal that they didn’t completely back the proposal. And reports about the design of DAPA suggest that DHS Secretary Jeh Johnson was in charge, and not OLC.

On Tuesday, 10/27/15 Jim Obergefell and Eric Alva appeared at an event in Houston to discuss LGBT rights. Alva, whose name is probably less familiar, was the first Marine who was seriously injured in Iraq–he stepped on a land mine within three hours of arriving–and later championed the cause of repealing Don’t Ask, Don’t Tell. Obergefell, whose name you ought to know, was the lead plaintiff in the Supreme Court’s same-sex marriage decision last June. (He was the named party because his cert petition was filed first, and had the lowest docket number). It was a very interesting and engaging event, as the two offered their personal insights about their history and accomplishments.

Before the event, I asked Obergefell if he would sign my pocket constitution. I have a growing collection of Pocket Constitutions signed by various judges, scholars, and others who have some impact on the Constitution. I usually hand over the Constitution, and ask them to sign the inside cover. But, as I approached Obergefell, I opened it up to the 14th Amendment page. Back in 2008–shortly after Heller–I had asked Justice Scalia to sign my Constitution on the page with the 2nd Amendment. (He refused, twice, but I got him to sign it on the third try). Why not, I thought quickly, ask Obergefell to sign the 14th Amendment. It seemed fitting.

I handed him the Constitution, told him I was a law professor, and said I would be teaching his case in a few weeks. He was really friendly, and as he graciously signed it, as we chit-chatted for a few moments. There were a lot of people waiting to see him, so I didn’t keep him much longer. He wrote his name, and below that “Love Won!” It was poetic, both in terms of what, and where he wrote it.

His message was indeed one of love. During the event, he told the heart-wrenching story of how his husband-to-be, John Arthur, was dying from ALS. (Remember the ice bucket challenge?). The couple flew on a medical plane to Maryland, where they were married on the tarmac, and immediately flew back to Ohio. Soon, suit was filed in federal district court in Ohio to modify Arthur’s death certificate, so that Obergefell would be listed as the spouse. The rest is, well, history.

But his inscription took on an even higher salience because of where he wrote it. In the Federalist Society Pocket Constitution I gave him (he didn’t note the irony), there is a blank space below Section 5 of the 14th Amendment. Obergefell, figuratively and literally, added a new section to the Constitution. Justice Kennedy’s majority opinion recognized love itself–not just “equal protection” or “due process of law”–as an interest protected by the Constitution. States that refused to recognize this “dignity” violated the Fourteenth Amendment. At the heart of this constitutional case was love.

With a few small scribbles, perhaps unwittingly, Obergefell aptly summarized everything his case was about from the moral and legal perspectives. I will use this Constitution as a teaching guide when I cover Obergefell in class on 11/9.

Here are a few other pictures from the event.