Analysis and Commentary on Health Law
Did Federalism Rescue Obamacare?

Cornell University professor Michael Dorf discusses last week’s oral arguments in King v. Burwell, the case in which the U.S. Supreme Court is expected to decide the fate of the Affordable Care Act (Obamacare). Dorf contends that there are three distinct arguments through which the government could successfully defend the law if the Court finds the language of the statute unclear.

How Federalism Cuts Against the Challengers in King v. Burwell: Part Two in a Two-Part Series

U.C. Davis law professor Vikram David Amar continues his discussion on how federalism cuts against the challengers to the Obamacare statute in King v. Burwell. In this second of a two-part series, Amar addresses some counterarguments to his thesis that federalism principles bolster the federal government’s position in that case.

Why the Federalism Teachings from the 2012 Obamacare Case Weaken the Challengers’ Case in King v. Burwell

U.C. Davis Law professor Vikram David Amar explains how the U.S. Supreme Court’s 2012 decision in National Federation of Independent Business v. Sebelius—upholding Obamacare as a proper exercise of Congress’s tax powers and striking down a significant expansion of Medicaid—weakens the case of subsequent challengers to Obamacare in King v. Burwell.

Disdainful Economists, Hubristic Jurists, and Fanatical Republicans: A Recipe for Single-Payer Health Care?

George Washington University law professor and economist Neil Buchanan explains why recent events detracting from the Affordable Care Act might lead to serious consideration of a single-payer health care system. Buchanan includes in his discussion the Supreme Court’s recent decision in NFIB v. Sebelius, a careless statement by economist Jonathan Gruber, and the upcoming challenge of it before the Supreme Court, King v. Burwell.

Travel Bans and Mandatory Quarantines: Ebola Panic Calls for Clarifying the Law

Justia columnist and former counsel to the president John W. Dean comments on the present Ebola panic and politicians’ reactions to it. Dean critiques these reactions as not based on medical knowledge and instead serving only to deter people from assisting to contain the international epidemic.

Federal Appeals Courts Divide Over Obamacare Subsidies—and Over “Textualism”

Cornell University law professor Michael Dorf discusses two federal appeals courts’ recent diverging decisions over Obamacare subsidies. Dorf contrasts the method of statutory interpretation used by the majority of a panel of the U.S. Court of Appeals for the D.C. Circuit, which struck down the subsidies, with that of the Court of Appeals for the Fourth Circuit, which upheld them.

Burwell v. Hobby Lobby Strikes Again, But Wisconsin Insurance Commissioner Strikes Out

Cardozo Law professor Marci Hamilton comments on a recent statement by the Wisconsin Insurance Commissioner that purportedly applies the U.S. Supreme Court’s decision in Burwell v. Hobby Lobby Stores Inc. to that state’s law. Hamilton critiques the interpretation as misunderstanding the federal Religious Freedom Restoration Act (RFRA) and calls upon state courts not only to correctly understand the scope of the Hobby Lobby decision, but to reject the Hobby Lobby majority’s reasoning when interpreting their own state’s laws.

The Soda Ban or the Portion Cap Rule? Litigation Over the Size of Sugary Drink Containers as an Exercise in Framing

Guest columnist and Touro Law Center professor Rodger Citron comments on the litigation in New York over a rule prohibiting food-service establishments from serving sugary drinks in sizes larger than sixteen ounces. Citron describes the arguments put forth by each side and explains why the critical issue is whether the Board of Health's has the authority to promulgate such a rule.

Now That the Affordable Care Act Is Working, It Is Time to Adopt National Single-Payer Health Care

Justia columnist, George Washington law professor, and economist Neil Buchanan explains why, now that the ACA’s enrollment target has been met—which means that the health care law will not collapse from lack of adequate participation—it is time for America to move on to a single-payer healthcare system in the near future.

Scandal at Notre Dame

Justia guest columnist, UNLV law professor, and visiting UC Irvine law professor Leslie Griffin comments on the recent controversy regarding Notre Dame, of which she is an alumna. Professor Griffin comments on Notre Dame’s arguments, which include one relating to the Catholic concept of scandal, and another that postulates that whenever Notre Dame signs the form objecting to contraception, the complaint triggers the provision of free objectionable coverage to Notre Dame’s employees in a manner contrary to its beliefs. Notre Dame also argues that by signing the objection, it facilitates contraception, and, by doing so, it will lead many to think that Notre Dame condones these services, and hence undermines its role, as a Catholic educational institution, to educate others on a matter of religious and moral significance. Griffin offers strong counterarguments, both logical and legal, to Notre Dame’s contentions.

The Dignity of Work Without End: Do Conservatives Really Want People Never to Retire?

Justia columnist, George Washington law professor, and economist Neil Buchanan points out important advantages of the Affordable Care Act (ACA). For instance, the ACA's decoupling of work and health insurance frees workers who had stayed in their positions simply because they needed the health insurance, rather than changing jobs and/or enjoying some leisure or time with family and friends. Buchanan suggests that freedom-loving conservatives ought to applaud that new freedom which the ACA creates. In addition, on a more theoretical level, Buchanan explains how, in his view, the imbroglio over the CBO’s report exposed the arbitrariness of conservative economics.

The Short, Unhappy Life of a Republican Attack Line, and Its Angry Aftermath

Justia columnist, George Washington law professor, and economist Neil Buchanan thoroughly debunks the oft-cited Republican claim that Obamacare will “kill” millions of jobs. Moreover, Buchanan points to some of the important pluses of Obamacare, such as the end of “job lock,” which occurs when a worker is stuck in a job he or she wants to leave, but cannot do so due to the fear of losing his or her health insurance.

Excluding Pregnant Women from the Right to Terminate Life Support

Justia columnist and Cornell law professor Sherry Colb comments on the situation of a pregnant 33-year-old woman in Texas whose family has been unable to have her removed from life support, notwithstanding her wishes and those of her family. The obstacle is a Texas law that prohibits the withdrawal or withholding of life-sustaining treatment from a pregnant patient. Colb contends that while political groups have weighed in—in predictable ways, corresponding to their views regarding abortion—in fact we should analyze the dilemma as in some respects, legally and morally distinct from the situation that confronts us in the abortion context, as she explains.

Meet our Columnists
Vikram David Amar
Vikram David Amar

Vikram David Amar is a Distinguished Professor of Law at UC Davis School of Law and a Professor... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan, an economist and legal scholar, is a visiting professor at the University of... more

John Dean
John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973.... more

Michael C. Dorf
Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He... more

Samuel Estreicher
Samuel Estreicher

Samuel Estreicher is Dwight D. Opperman Professor of Law and Director of the Center of Labor and... more

Leslie C. Griffin
Leslie C. Griffin

Dr. Leslie C. Griffin is the William S. Boyd Professor of Law at the University of Nevada, Las... more

Joanna L. Grossman
Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School... more

Marci A. Hamilton
Marci A. Hamilton

Professor Marci A. Hamilton is a Professor of Practice in Political Science at the University of... more

Joseph Margulies
Joseph Margulies

Mr. Margulies is a Professor of Government at Cornell University. He was Counsel of Record in... more

Austin Sarat
Austin Sarat

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at... more

Laurence H. Tribe
Laurence H. Tribe

Laurence H. Tribe is the Carl M. Loeb University Professor Emeritus at Harvard University and... more

Lesley Wexler
Lesley Wexler

Lesley Wexler is a Professor of Law at the University of Illinois College of Law. Immediately... more