Rebuilding Health Care Policy from the Ground Up


Campaign Flier from the Wright Patman Archives (via Matthew Stoller)

The signature progressive initiative of early 21st century America–the Affordable Care Act–is about to be gutted.  In 2009, I agonized about whether to support it. In the last paragraph of a bloated blog post, I concluded:

By passing this reform bill, Democrats will jettison whatever “populist” credentials they once had, opting instead for an early-twentieth-century “progressive” vision of technocratic alliance between corporate and government experts. . . . We’ll commence an endless argument (read: notice and comment rulemaking and subsequent administrative adjudications) over what constitutes an adequate baseline of coverage. . . . But the fundamental victory of reform–the national commitment that no one should have to choose between death or bankruptcy when confronted with a serious illness–will also endure. The tragic paradox is that the Democrats can only achieve this great cultural and ideological victory by becoming identified with the very interests that only they are willing to confront.

I was right about a few things: it was a Pyrrhic victory, the backlash was brutal, and virtually every indignity or imposition concocted by private insurers in the past seven years has been blamed on “Obamacare.” But I was wrong about the most important points. The rulemaking and adjudications will end. The Trump/Ryan/McConnell approach to health care will leave Obamacare in the dustbin of history. And when it does, it will impose on millions of Americans exactly the situation they faced pre-ACA: choose between death or bankruptcy when confronted with a serious illness.


In October, Larissa MacFarquhar published a thoughtful essay on “The Heart of Trump Country.” One supporter of the President-elect said:  “When you hear about illegal aliens getting benefits and you have people here starving to death and can’t get nothing, it’s just a slap in the face. When you start talking about bringing in refugees and when they get here they get medical and dental and they get set up with some funds—what do we get?” Here’s Obamacare’s answer:

Under the terms of the ACA, if you are unemployed, or if your employer’s insurance is unaffordable (defined as an individual plan (not a family plan) costing you over 9.5% of income), you can buy insurance on the exchange. You can choose plans from one of four precious metal tiers (bronze, silver, gold, and platinum), with varying actuarial values (60 to 90%). You’ll pay premiums, but you’ll also get sliding scale subsidies based on how high your income is above the poverty level. You will probably also need to pay co-pays, coinsurance (a percentage of each bill), and deductibles, up to some percentage of your income specified by statutory out-of-pocket maximums. (Just be sure not to incur out-out-network costs that don’t count toward out-of-pocket maximums.)

But you can get cost-sharing subsidies to cover some of that expense, based on a sliding scale slightly different than the premium assistance tax credit scale. Just be sure to shop carefully on the exchange, because some plans have narrow networks–that is, they may not cover the physicians or hospitals you normally use. In fact, you may have to drive 20 or 50 miles to find a physician in the network–the rules on network adequacy can be hazy. Note also that, in a narrow network, if you have a surgery, it’s possible out-of-network physicians or other personnel may attend, and you could be on the hook for the whole amount they charge–unless your state has a “no surprise billing” law.

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Petition to the President Asking For Recognition of John Bingham

I have created a petition on the White House website asking the President to give John Bingham a Presidential Medal of Freedom in honor of his contributions to the Fourteenth Amendment.  I urge you to sign and spread the word.  This would be an important statement (albeit symbolic) of our commitment to liberty and equality.


The Death Penalty is Not Going Away

One of the unheralded themes from Tuesday’s results is that the demise of the death penalty has been greatly exaggerated.  There will obviously be no Supreme Court majority anytime soon that will pick up on Justice Breyer’s dissenting opinion in 2015 (joined by Justice Ginsburg) that the death penalty is unconstitutional.  Moreover, a ballot proposition to abolish capital punishment was voted down in California, Nebraska voted to repeal a statute outlawing the death penalty, and Oklahoma amended its state constitution to protect capital punishment.


NFIB v. Sebelius

One result of the election is that the Chief Justice’s opinion upholding the constitutionality of the Affordable Care Act takes on a different light.  First, the case is simply far less important than we thought.  Second, the Chief Justice’s judgment that any repeal of the Act should be accomplished through ordinary political processes rather than through a judicial decision now looks better. Of course, we don’t know how the legislative process will play out next year, but it’s fair to say that the Act will be significantly modified.


FAN 131 (First Amendment News) Forthcoming: Chemerinsky & Gillman on the importance of free speech on college campuses

It is one of the topics of our times — free speech on college campuses. As noted below, each week there are numerous news stories about this or that form of censorship endorsed by campus administrators. Now, two experts in the field of law and education have entered the marketplace of ideas in which this controversy continues.

Dean Erwin Chemerinsky

Dean Erwin Chemerinsky

Enter Dean Erwin Chemerinsky and Chancellor Howard Gillman with their next book: Free Speech on Campus (Yale University Press, summer 2017). Here is a draft of an excerpt from the preface to that book:

“Students are rightly demanding, and colleges and universities are striving to provide, greater diversity and an environment conducive to learning for all students. Often, though, these efforts have led to calls to restrict, punish, or disrupt speech by students and faculty members that is seen as creating a hostile learning environment, especially for those who have traditionally suffered discrimination. Some of this anger has been focused on speech that almost anyone would consider offensive and hateful. But there have also been calls to suppress speech that is merely politically controversial or contrarian. There are demands that campuses deal with “microaggressions” and require faculty to provide ‘trigger warnings’ before covering material that some students might find upsetting. Students have demanded—and received—formal investigations of possible violations of federal law after faculty members published scholarly articles in journals. The issues concerning speech on campus are complicated by the unprecedented ability for any person to quickly reach a large audience via social media. . . .”

Chancellor Howard Gillman

Chancellor Howard Gillman

“We fear that discussions over this issue, like so much else in society, are polarizing into two camps. One derides all efforts to protect students from the effects of offensive or disrespectful speech as ‘coddling’ and ‘political correctness.’ The other side believes that free speech rights are secondary to the need to protect the learning experience of students, especially minority students. “

“We write this book because we believe both sides are right and wrong. They are right in that both equality of educational opportunity and freedom of speech are essential for colleges and universities. But they are wrong in thinking that one of these objectives can be pursued to the exclusion of the other. Colleges and universities must both create inclusive learning environments for all students and protect freedom of speech. To achieve both of these goals, campuses may do many things, but they must not treat the expression of ideas as a threat to the learning environment. Freedom of expression and academic freedom are at the very core of the mission of colleges and universities, and limiting the expression of ideas would undermine the very learning environment that is central to higher education. . . . .”

There is more, much more, but I will stop there since the book is in the editing process. That said, the authors have kindly agreed to allow me to reprint a draft of the book’s table of contents:


Chapter 1:  The New Censorship

Chapter 2:  The Importance of Free Speech

Chapter 3:  The Special Role of Free Speech at Colleges and Universities

Chapter 4:  Hate Speech

Chapter 5:  Academic Freedom and Inclusive Learning Environments

Chapter 6:  What’s at Stake?

I will say more about this important book this coming summer when it is scheduled to be released.

Free Speech on College Campuses 

Heard on Campus: ‘The First Amendment and Diversity and Inclusion,’ Penn State News, Nov. 8, 2016 (video, participants: Robert D. Richards, Carla Pratt, Nancy J. LaMont, Stephen Ross, Victor Romero, & Maureen B. Cavanaugh

Susan Kruth, First Amendment Lawsuit Settled with Speech Code Revisions on 10 Arizona Campuses, FIRE, Nov. 8, 2016

Greg Piper, Satirical campus paper that was defunded because it offended people loses court battle, The College Fix, Nov. 8, 2016

Christina Hoff Sommers (credit: Aarushi Jain, Columbia Spectator)

Christina Hoff Sommers (see #10 below)
(credit: Aarushi Jain, Columbia Spectator)

  1. ASNE stands ready to defend First Amendment rights, strong democracy, iReach, Nov. 9, 2016
  2. Annalena Wolcke, A Brief Overview of “Freedom of Speech” on the University’s Campus, The Daily Princetonian, Nov. 9, 2016
  3. Sara Shepherd, National free speech group says KU is among schools with codes that ‘violate’ the First Amendment; University Senate free speech committee continues meeting, LJ World, Nov. 7, 2016
  4. Annika Cline, MCCCD Eliminates Free Speech Zones, Allowing Expression Everywhere On Campuses, KJZZ, Nov. 7, 2016
  5. Ray Stern, Free Speech Now Freer at Maricopa County Community College District, Phoenix Times, Nov. 7, 2016
  6. Van Nguyen, Conservative journalist Ben Shapiro criticizes campus censorship at YCT event, The Daily Texan, Nov. 4, 2016
  7. Cody Nelson, In campus free speech debate, nobody’s really winning, MPR News, Nov. 4, 2016
  8. D.C. McAllister, Free Speech Under Attack at Another College Campus, PJ Media, Nov. 3, 2016
  9. Pfeffer Merrill, Pro: Colleges must guard free speech, Evansville Couruer & Press, Nov. 3, 2016
  10. Cara Maines, Controversial feminist critic discusses trigger warnings, free speech amidst opposition on campus, Columbia Daily Spectator, Nov. 2, 2016
  11. A Public University Makes Students Choose Between Their First Amendment Rights & Graduation, Forbes, Nov. 2, 2016
  12. Lawrence Ross, Blackface on College Campuses Isn’t About Freedom of Speech; It’s About White Supremacy, The Root, Oct. 31, 2016
  13. Cliff Maloney, Jr., Colleges Have No Right to Limit Students’ Free Speech, Time, Oct. 13, 2016

Ballot Selfies: Colorado & California — Different Results   Read More


Vanderbilt Law Review, Volume 69, Number 5

The Vanderbilt Law Review is pleased to announce the publication of our October 2016 issue:

This issue includes a Tribute to Elizabeth Chitwood


Suzanna Sherry, Normalizing Erie, 69 Vand. L. Rev. 1161 (2016)

Aaron Saiger, Agencies’ Obligation to Interpret the Statute, 69 Vand. L. Rev. 1231 (2016)

Christine P. Bartholomew, The Failed Superiority Experiment, 69 Vand. L. Rev. 1295 (2016)

Jason Iuliano & Ya Sheng Lin, Supreme Court Repeaters, 69 Vand. L. Rev. 1349 (2016)


Clayton J. Masterman, The Customer Is Not Always Right: Balancing Worker and Customer Welfare in Antitrust Law, 69 Vand. L. Rev. 1387 (2016)

Susanna Rychlak, I See Dead People: Examining the Admissibility of Living-Victim Photographs in Murder Trials, 69 Vand. L. Rev. 1423 (2016)


Ted Cruz for the Supreme Court

Wouldn’t the President-elect be smart to get Ted Cruz out of the Senate and offer him the Scalia seat.  Conservatives would love the pick, he’s clearly qualified, and then Trump wouldn’t have to deal with him anymore.  (I’m not thrilled by this prospect, but it does make sense, no?)


Trump as Andrew Jackson

I thought I would take a stab at putting the election into some context.  The only President that compares to the current President-elect is Andrew Jackson.  He led a popular revolt against the political establishment of the day.  He also took a strong view of executive power and scared a lot of people who thought he would become a dictator (largely because of his military background). And he certainly was a bull in a china shop as President.

I don’t make this as a favorable comparison, as Jackson was a bad (though politically powerful) President. But perhaps there is something that can be learned from that era.


More on Faithless Electors

Let’s hope that the election does not yield any weird problems or results, but before the vote is complete let me explore one or two issues about the Electoral College.

Up until now, I’ve thought that electors are free to vote for anyone and that state cannot constitutionally restrict that choice. Now, though, I’m wondering if the correct argument is that most states just permit electors to vote for anyone, but they can choose not to.  I say that because I doubt that states had any laws regulating who electors could vote for until recent decades, and I’m wondering if any of the electors who voted faithlessly in the past ever came from a state that said they could not.  Maybe I should look into that (maybe somebody already has).

Another thought is that there are some states that say a faithless elector vote is invalid. Others say it is valid but that the elector must pay some fairly trivial fine for voting that way. This strikes me as silly.  Either the vote should be counted or not.  What’s the point of a fine?


The Brexit Opinion

Yesterday a court held that the Government cannot unilaterally trigger the process for Britain to withdraw from the European Union.  Instead, Parliament must do so with a statute. Since I posted about this issue after the Brexit vote, I thought I would comment on the decision, which will be appealed to the UK Supreme Court.

One aspect of the court’s analysis involved the legal effect of a decision to give formal notice of a withdrawal.  A principle of the unwritten constitution is that the Government cannot unilaterally (in other words, without statutory authority) alter the domestic legal rights of British citizens.  The Government replied that starting the withdrawal process does not alter any legal rights: only the final exit agreement would and that would go before Parliament. The Court said this argument was without merit because there was no way to know if an exit agreement would be reached during the two-year negotiation period specified by the relevant EU Treaty.  If no agreement is reached, then Britain’s EU membership simply ends and that would alter domestic legal rights.  Thus, they could be altered without parliamentary approval if the Government failed to reach an agreement with the European Union and approval must be sought now.

This strikes me as unpersuasive. The fact that there is a risk that legal rights will be altered is not the same as saying that they are being altered.  In practical terms, I also think that the Government is very unlikely to reach no agreement with the EU. Now Parliament might be required to act if that happens, and the courts might have to keep applying EU law where applicable until Parliament acts, but those are possible remedies for a far-fetched scenario.

A more convincing line of argument is the Court’s assertion that the Act formalizing Britain’s membership in the EU is a “constitutional statute” that must be read more strictly in favor of Parliament’s prerogatives than an average statute (other precedents made this point).  Since that statute made EU law a part of UK law, only an Act of Parliament can begin the process of undoing that. Again, the issue is whether the start or the end of the process is the relevant reference point. Here, though, you might say that reading the Act as strongly as possible would cover the beginning and the end.

We’ll see what happens on appeal sometime next year.  Later I may return to the intriguing idea of a “constitutional statute.”