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More Bad News for Obamacare

This just in: Judge Ronald A. White of the U.S. District Court for the Eastern District of Oklahoma has just denied the feds’ motion to dismiss, for lack of jurisdiction, Oklahoma’s complaint against federal regulations that would extend Obamacare’s employer mandates to states (like Oklahoma) that decline to establish a state health care “exchange”—now called a “marketplace”—under the not-so-Affordable Care Act. While dismissing some of the state’s counts, the judge let other, crucial claims go forward. The ruling is on a motion to dismiss, so the feds may re-assert their jurisdictional defenses at the summary judgment stage.

They had better, and they will. If they can’t win on jurisdiction, they can’t win at all. Despite the plain language of the statute, the administration has taken the position that (a) the employer mandate won’t take effect until a year after the statutory date, at which point it will (b) apply to everyone, including states and employers that are specifically exempted from the ACA’s applicable provisions.

In other words: anything goes, and you can’t complain. Good luck with that.

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Obamacaid Revisited

In the pending Obamacare litigation, the plaintiff-states argue that Title II of the Affordable Care Act (“Obamacaid”) unconstitutionally “coerces” them to participate in a grand expansion of Medicaid. I’ve argued here and there that the plaintiffs will and should lose that argument. A terrific amicus brief by Vanderbilt Law School professor James Blumstein makes a powerful case on the other side. Ultimately, Jim’s brief doesn’t fully persuade me. But it comes very, very close on account of its recognition that Obamacaid’s crucial problem has to do with the bilateral risk of opportunistic defection from a pre-existing, quasi-contractual relation (Medicaid), not with some “economic coercion” story about federalism’s “balance” and the poor, pitiful states and their faithful public servants. (For ConLaw dorks: the key cases are Pennhurst and Printz, not South Dakota v. Dole or Steward Machine.) I hope to explain sometime next week; today, a few additional remarks on economic coercion. Read more