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In August, President Trump teased a future executive order concerning pre-existing conditions. (See here and here). At the time, I predicted that Trump was trying to aid the Supreme Court's deliberations in Texas v. California. I wrote;
Ilya Shapiro and I filed the Cato Institute's amicus brief in California v. Texas. We proposed that the Trump administration could require, by executive action, insurers on the ACA exchange to comply with guaranteed issue and community rating. But why would such an executive action be needed if the ACA is in place? Well, the ACA is currently being challenged. And perhaps one factor that could aid the Court's deliberations would be an assurance that people with pre-existing protections could still obtain coverage on the exchanges, even if guaranteed issue and community rating (GICR) were found to be inseverable.
The analysis for individual market, on-exchange policies is different. Hurley and Nantz are not eligible for subsidies. Declarations, supra. But they could still purchase an unsubsidized plan on the exchanges. Halting GICR with respect to policies sold on the exchanges would be an unnecessarily overbroad remedy. So long as the plaintiffs can purchase off-market non-compliant plans, or none at all, their injuries will be remedied. Plaintiffs cannot demand a greater remedy to alter all policies offered on government exchanges. Moreover, people who seek to buy a government-sponsored product on a government exchange cannot complain about cumbersome regulations. [FN 12] Courts need go no further than issue a declaration with respect to individual market, off-exchange policies. "[T]he judicial power is, fundamentally, the power to render judgments in individual cases." Murphy, 138 S. Ct. at 1485 (Thomas, J., concurring). No more, and no less. Hurley and Nantz, meanwhile, and all those who object to being forced to purchase unwanted policies, will have other options.
[FN12]: This narrow remedy would address concerns raised by the Federal Respondents about creating a "potentially unstable insurance market." See Brief for the Federal Respondents at 44–45. The executive branch could also require insurance providers on the exchanges to comply with the ACA's GICR provisions, regardless of the outcome of this litigation.
Today President Trump signed the self-styled "Executive Order on An America-First Healthcare Plan." There are several references to the ACA litigation that, I think, are leading towards my proposal.
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COMMENTS VIA TWITTER
#DayofFacts #FactsMatter #TruthMatters #TrumpCare #Healthcare #JustSayin From 9-24-2020: Executive Order on An Amer… https://t.co/XHpSa0FM6I
@Matt_Dillahunty Try to keep up, Dills ... https://t.co/GQGPnu3IUd
@Matt_Dillahunty Find the hamberder. https://t.co/I0l3l1zbx2
The Left needs to quit their lying and smearing campaign when @POTUS has in fact protected those with pre-existin… https://t.co/fONnPr1aLG
@Jacquel84287201 @ChasingMustafa @msingerx @CillizzaCNN Agree about Republicans, kept passing nonsense then when ha… https://t.co/8AoSxzjqEH