Friday, April 29, 2011

Article summarizing the states' challenges

With great help from a number of people--most notably, Brandon Douglass, Prof. Mitch Pickerill (Washington State University, political science), and some terrific anonymous reviewers--I have published an article in Publius: The Journal of Federalism, which reviews the states' challenges to the ACA. Publius is an interdisciplinary journal with an audience principally comprised of political scientists. It is a great journal, and it was a real honor to write the piece for them.

For most readers tuning in here, there really is nothing terribly original in the article. The chief aim of the piece was to make the legal intricacies of the two most plausible constitutional challenges--(1)that the minimum coverage provision exceeds Congress's enumerated powers, and (2) that the Medicaid amendments effectively commandeer the states--accessible to a broader audience.

If there is something interesting in the article, it lies in these three claims: (1) that the Supreme Court is quite unlikely to sustain the states' challenge to the Medicaid amendments, due to the extremely disruptive doctrinal implications it would entail; (2) that the Court is much more likely to invalidate the minimum coverage provision, given that it would be relatively simple doctrinally and have few doctrinal implications going forward; and (3) that Chief Justice Roberts, in my view, is the median voter in this case, not Justice Kennedy.

If you are interested, you can find the article here. (Of course, comments are always welcome and appreciated.)