Bench Memos

Jonathan Adler on Illegality of Latest Obamacare “Fix”

Law professor (and Bench Memos contributor) Jonathan Adler has an excellent post on the Volokh Conspiracy on President Obama’s purported Obamacare fix yesterday. I’ll highlight this passage:

[E]ven if state commissioners approve the plans, they will still be illegal under federal law. Given this fact, why would any insurance company agree to renew such a plan? It’s nice that regulators may forbear enforcing the relevant regulatory requirements, but this is not the only source of potential legal jeopardy. So, for instance, what happens when there’s a legal dispute under one of these policies? Say, for instance, an insurance company denies payment for something that is not covered under the policy but that would have been covered under the PPACA and the insured sues? Would an insurance company really want to have to defend this decision in court? After all, this would place the insurance company in the position of seeking judicial enforcement of an illegal insurance policy. If there’s an answer to this, I haven’t seen it. It’s almost as if the Administration has not thought this through.

For an outstanding broader assessment of yesterday’s announcement, see my Ethics and Public Policy Center colleague Yuval Levin’s Corner post, “The President Is Losing His Plan.”

As I tweeted yesterday about this latest Obama administration illegality: “If we like our constitutional system, can we keep it? Evidently not.”

By the way, I’m experimenting with being more active on Twitter (yes, I’m still blushing to acknowledge that), so if you’re already on Twitter, I invite you to follow me at @EdWhelanEPPC.


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