Tom Goldstein Recounts The Immediate Aftermath of NFIB v. Sebelius

July 7th, 2012

Very good breakdown. Including this bit:

 Because the Act is important to stock prices, stock traders will have a very rare opportunity to arbitrage the conflicting media reports and the fact that no one outside the Court has the opinion. The market had been betting against the mandate surviving.  That would have been bad for hospitals (which would lose revenues) and good for many insurers (which could be more selective in their customers).  Now hospital stock prices begin to spike:  Hospital Corp. of America, the nation’s largest private hospital chain, quickly rises from $27.38 to $29.35.  Many insurance stocks start to tumble:  United Health Group falls from $58.69 to $55.73.

The Court went to significant additional efforts to make sure that the health care opinion would be available quickly on its website.  But it should have had a better back-up plan, including distributing the opinion immediately by email to reporters and to the government.  The fact that the Court initially released the opinion only in physical form to the media at the Courthouse made it much more difficult for others to resolve the conflicting media reports.  The White House could not review the decision to tell the President what had happened.  And many millions of dollars were gained and lost in the markets based on which media reports traders and investors happened to be watching.