NYU law professor Samuel Estreicher comments on the position in the Department of Justice recently took with respect to the Patient Protection and Affordable Care Act (colloquially known as “Obamacare”), declining to defend any part of the Act in court. Estreicher argues that the DOJ’s position lacks justification and explains the weaknesses of the district court’s reasoning striking down the entire Act.
Cornell law professor Michael C. Dorf comments on the recent ruling by a federal district judge in Texas striking down the entirety of the Affordable Care Act and argues that the judge relies on a highly unorthodox (and erroneous) interpretation of the doctrine of “severability.” As Dorf explains, there is a notable lack of judicial consensus as to what courts actually do when they declare laws unconstitutional, despite that the Supreme Court established its power of judicial review over two centuries ago in Marbury v. Madison (1803).
Illinois Law dean and professor Vikram David Amar discusses a challenge to the Affordable Care Act (popularly known as Obamacare) that recently succeeded in a lower federal court. That challenge, brought by the U.S. House of Representatives, raises the threshold issue whether the House can sue the president to vindicate their legislative powers. Amar explains the few notable times the Supreme Court has considered whether legislators or legislatures could sue the executive branch, and he compares and contrasts those cases with the present challenge.
Cardozo Law professor Marci Hamilton comments on the recent decision by the U.S. Supreme Court in Zubik v. Burwell, in which the Court via a per curiam opinion declined to interpret the Religious Freedom Restoration Act (RFRA) as applied to the Affordable Care Act. Hamilton also describes the Do No Harm Act, which is a bill proposed this week that attempts to carve out of RFRA some of its worst incentives and inclinations. While Hamilton argues that RFRA should be repealed outright, she acknowledges that the Do No Harm Act is absolutely a step in the right direction.
Cornell University law professor Sherry Colb considers how the U.S. Supreme Court, acting as a mediator, might approach the parties in Zubik v. Burwell, a case currently before the Court in which the Court made the unusual request of supplemental briefing from the parties. Colb explains both the capabilities and limitations of transformative mediation as a method of resolving disputes.
Cornell University law professor Michael Dorf comments on a recent unusual order by the U.S. Supreme Court asking for supplemental briefing from the parties to the latest religious challenge to Obamacare. In contrast with other commentators who have described the order as “puzzling” or “baffling,” Dorf explains how the Court’s order resembles something federal district courts do on a routine basis: facilitate settlement of the dispute.