The Volokh Conspiracy

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Volokh Conspiracy

What are the president's options if he loses King v. Burwell?


Yesterday I had an op-ed in the New York Times discussing the scope of the Supreme Court's jurisdiction in King v. Burwell and what it means for the administration's possible responses.

It begins:

It is time to talk about President Obama's contingency plan for health care. The Supreme Court heard oral arguments earlier this month in King v. Burwell, a case challenging the provision of tax credits on federal insurance exchanges. While the legal issues are dry lawyers' fare—how to interpret several interconnected phrases of the Affordable Care Act—the practical stakes are high. The government estimates that millions of Americans will be left without affordable health insurance if it loses.

While the administration may well prevail, it has expressed remarkable pessimism about its options if it does lose. The secretary of health and human services, Sylvia Mathews Burwell, wrote to Congress last month about the administration's lack of a contingency plan: "We know of no administrative actions that could, and therefore we have no plans that would, undo the massive damage to our health care system that would be caused by an adverse decision."

But luckily the Constitution supplies a contingency plan, even if the administration doesn't know it yet:

And the whole thing is here.

I'm out of the country and have been largely offline and therefore mostly unavailable to respond to the thousand-some comments on the Times webpage, and the many many tweets. But if you look around, you can find lots of skeptical responses, including these from Noah Feldman, Nick Bagley, Josh Blackman, James Taranto, and Andy Grewal.