On Tuesday, September 27, 2016, the Cato Institute hosted a book forum for Unraveled. Ilya Shapiro moderated a discussion with me, Robert Barnes (Washington Post) and Phillip A. Klein (Washington Examiner). I am grateful for the discussion of the book, and the opportunity to sign some books for avid readers after the book.
Enjoy the video and audio from the event:
I have to upcoming lectures in the Peach State. On Wednesday, 10/5 at noon, I am debating my good friend and legal pugilist Eric Segall on how the upcoming election will impact the Supreme Court and its precedents. On Thursday 10/5 at 2:30, I will be discussing 3D-Printed Guns at the Mercer University School of Law. Both events are hosted by the Federalist Society, and are open to the public.
On September 27, 2016, the Georgetown Federalist Society chapter hosted an engaging discussion on “Supreme Court Advocacy in the Obamacare Case.” This was a followup to a similar discussion held at Georgetown in 2013 on my first book, Unprecedented. This event focused on Hobby Lobby, King v. Burwell, and Little Sisters of the Poor. Adam Liptak moderated a discussion, that included me, Mike Carvin (who argued King v. Burwell), Erin Murphy (who worked on Hobby Lobby and Little Sisters), and Marty Lederman (who has briefed and blogged about these cases). Adam tried (as best as he could) to keep the attorneys talking about advocacy, without devolving into what “established by the state” means. I offered a preview on the Volokh Conspiracy from Unraveled about Carvin’s advocacy in the tax subsidies litigation, which is worth a study.
Enjoy!
On Friday, the Justice Department filed a motion to dismiss the risk corridor suits brought by Moda Health Plans and Blue Cross Blue Shield of North Carolina. To grossly summarize, Congress passed a statute that required the risk corridors to be budget neutral. Because there was far less paid into the fund than expected, insurers were not paid as much as they expected. The government argued (as expected) that the claims are not yet ripe and there are no claims for “presently due money damages” under the Tucker Act.
However, the government goes on to argue that the pro-rata payments “are rational” and HHS has no contractual obligation to make additional payments. These arguments are somewhat surprising in light of recent reports that the Obama administration is looking to settle these cases using the judgment fund. Why is the government offering such a full-throated defense if they are planning on settling the cases anyway?
Perhaps the institutional constraints within the Justice Department are leery of assuming away that a contractual obligation has been made. Such a decision could open the floodgates to many more claims from other government contractors. In this case, once a court refuses to dump the case and holds that there is a contract, that paves the way for a settlement from the judgment fund. Although, things get quirky if the court dismisses the case. If the government loses, could it still offer a settlement?
I frankly don’t understand this strategy, but there are a lot of moving parts here.
Today’s New York Times has a revealing, and bleak profile of the ACA exchanges in year three:
The fierce struggle to enact and carry out the Affordable Care Act was supposed to put an end to 75 years of fighting for a health care system to insure all Americans. Instead, the law’s troubles could make it just a way station on the road to another, more stable health care system, the shape of which could be determined on Election Day.
At every single book event I’ve done, I have been asked the same question: “Was the ACA designed to fail?” My answer: “Not this quickly.” Jonathan Gruber has stated on several occasions that the ACA was merely a weigh-station to national health care, but I don’t think the smartest guys in the room anticipated the pit stop would be quite this short. The fatal conceit of central planning has once again, taken the central planners by complete surprise.
Remarkably, in less than three years, Obamacare has unraveled the individual health insurance marketplace.
In such divergent proposals lies an emerging truth: Mr. Obama’s signature domestic achievement will almost certainly have to change to survive. . . .
“Employer markets are fairly stable, but the individual insurance market does not feel stable at all,” said Janet S. Trautwein, the chief executive of the National Association of Health Underwriters, which represents more than 100,000 agents and brokers who specialize inhealth insurance. “In many states, the individual market is in a shambles.”
Another question I am often asked is whether I feel bad for the insurance companies that are struggling. My answer: “Schadenfreude.” Karen Ignani and her cronies made a faustian pact with the government. They were ecstatic that the government would mandate that people buy their products, and subsidize the marketplaces. How did that work out? Not so well. Now insurance companies are fleeing the marketplaces in droves, after losing hundreds of millions of dollars.
So what is the solution from the central planners? More central planning!
But that does not mean the act will heal on its own, said Sara Rosenbaum, a professor of health law and policy at George Washington University.
“Even the most ardent proponents of the law would say that it has structural and technical problems that need to be addressed,” she said. “The subsidies were not generous enough. The penalties for not getting insurance were not stiff enough. And we don’t have enough young healthy people in the exchanges.”