Nicholas Bagley
@nicholas_bagley
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Professor at @UMichLaw , former Chief Legal Counsel to @GovWhitmer
Ann Arbor, MI
Joined November 2013
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Pinned Tweet
“What Bagley shows is that liberals too have been complicit in that project — to the detriment of many of the very causes they hope to advance.”
This was a great conversation with
@ezraklein
.
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It's not just about masks. Hiding a positive test is also *precisely* what we want to discourage people from doing. When Hope Hicks tested positive, everyone she'd had close contact with should have been notified immediately and quarantined. They weren't.
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The Pfizer news means the value of avoiding infections over the next few months has gone way up. That in turn should make states more willing to move aggressively to reduce infections in the short term. The aim should be to get as many people through the winter as possible.
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I see it's time for yet another episode of “no, just because you call it an executive order doesn’t make it law.”
I can't believe I have to do this again.
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I know Adam. It is difficult for me to think of a more upright, honest, and faithful public servant. His withdrawal is a powerful signal of institutional rot within the Justice Department.
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The Justice Department has now announced that it will not defend any part of the Affordable Care Act. If it has its way, the entire ACA should fall.
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The Texas judge who's primed to eliminate the ACA's protections for preexisting conditions has been sitting on his opinion for six weeks now. My money? The judge is waiting until after the midterms because he knows that bad ACA headlines would hurt Republicans at the polls.
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If you were ever tempted to think that right-wing judges weren't activist -- that they were only "enforcing the Constitution" or "reading the statute" -- this will persuade you to knock it off. This is insanity in print, and it will not stand up on appeal.
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The depth of bad faith on display here is jaw-dropping. And the sheer reckless irresponsibility is worse. The notion that you could gut the entire ACA and not wreak havoc on the lives of millions of people is insane. It is now part of the plumbing of the health-care system.
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We have a new executive order on health care! It's a glorified press release, nothing more -- and one that should be treated as the pathetic document that it is.
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This is from an administration that claims to support protections for people with preexisting conditions. This is from an administration that claims to care about the plight of the uninsured. This is from an administration that has a duty to defend the law.
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Honestly, I can't even. It is *literally* your policy that it's completely fine to force people to report how many hours they worked each month as a condition of keeping their Medicaid.
Paperwork for poor people is OK. Just not for the rest of us.
Imagine if you had to fill out numerous forms to access your bank account, or if you couldn’t transfer your money? This is a sad analogy to today’s health care system.
@JaredKushner
, Dr. Don Rucker & I share how the Trump Administration is fixing this:
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Maybe this level of disdain for an Act of Congress is to be expected from the Trump administration. Maybe it doesn't bother you because Russia and Iran and ... . But stay woke, people. This is not business as usual. This is not OK. This is a threat to the rule of law.
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I'm getting a lot of questions about when the judge's opinion takes effect. Bottom line: nothing changes for now, and nothing will change for some time to come. Here's why.
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And here's where it gets even scarier: the Trump administration's apparent belief that it has no obligation to defend an Act of Congress not only flies in the face of centuries of Justice Department practice.
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Who’s a good doggo? Bella.
A heartwarming story of a dog and a diabetic.
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And if you think the rule of law is some quaint relic of a bygone age, well, you may miss it when it's gone.
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I don't mean to be an alarmist about the rule of law, but now is a time for being an alarmist about the rule of law. The Trump administration has just announced that it doesn't care that the law was passed by Congress and signed into law by the President.
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Every single reputable commentator -- on both the left and the right -- thinks this opinion is a joke. *No one* has defended Judge O'Connor's opinion. No one could. This is not a "reasonable minds can differ" sort of case. It is insanity in print.
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My ardent hope for the election, sure to be dashed, is that the press crisply describes the huge policy divide on health care. More “Republicans lie again about protecting people with pre-ex conditions,” less “Republicans say they care about protections; Democrats raise doubts.”
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Just a friendly reminder that a Texas judge, at the Trump administration’s behest, appears to be waiting until after the midterms to strike down the ACA’s protections for preexisting conditions.
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The only protections that exist come from the Affordable Care Act—the very law that the Trump administration has asked the Supreme Court to strike down.
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Here's the brief. As expected. The Justice Department believes the crucial insurance reforms of the Affordable Care Act are unconstitutional and will not defend them. This is an enormous blow to the integrity of DOJ.
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Those executive orders -- and that's most of them -- don’t have legal effect. They’re just internal memos with a fancy header. That’s all they are.
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Or if it *is* a news story, it's one about how the White House is using fancy letterhead to confuse the American public about health care before the presidential election.
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It's also a close cousin to a decision not to enforce the law at all -- after all, if the law is unconstitutional, as the administration apparently believes, how can it be enforced at all? To do so would violate the very Constitution that empowers the President to act.
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So his executive order has no more legal weight than this tweet.
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I've got a
@washingtonpost
op-ed up on yesterday's awful opinion from Judge Reed O'Connor. "This case is different; it’s an exercise of raw judicial activism. Don’t for a moment mistake it for the rule of law."
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Do you want to live in a country where the executive branch can pick and choose the craziest of arguments and decline to defend -- or even to enforce! -- laws on that basis? The President has a duty to take care that all the laws are enforced, not just the ones he agrees with.
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I am at a loss for words to explain how big of a deal this is. The Justice Department has a durable, longstanding, bipartisan commitment to defending the law when non-frivolous arguments can be made in its defense. This brief torches that commitment.
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my parents have an appointment to get vaccinated and i am over the fucking moon
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But the blow to the institutional integrity of the Justice Department is profound. That's why three line attorneys -- civil servants who have made arguments they disagreed with countless times -- removed themselves from this case. These arguments are that far beyond the pale.
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That ends today's episode, thanks for watching, I'm sure we'll be back next week.
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Trump has issued it so he's got a talking point ("I issued an executive order protecting people with preexisting conditions"). And he'll pick up some headlines from some credulous press outlets.
What this isn't is a news story.
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If you can't believe I'm still here doing this right now, trust me when I tell you I can't believe it either. It is all so very dumb.
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Traditionally, executive orders are instructions to agency officials about how to exercise their congressionally delegated powers. Maybe they should issue a new rule or set new enforcement priorities.
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Oh, by the way -- he issued this decision the night that open enrollment ended. You think that was a coincidence? I've got a bridge to sell you.
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This is an appalling commentary on the depths to which the Justice Department leadership has sunk.
New DOJ team on census cases appears to be your typical array of attorneys from the Office of Immigration Litigation and the Civil Frauds Division, headed by the new political head of Consumer Protection and Civil AAG Jody Hunt's Senior Counsel. Business as usual.
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It's a small but telling thing: this from the
@nytimes
article on the Whitmer kidnapping plot is dead wrong. And it normalizes what actually happened here in Michigan.
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Do I *really* have to explain this yet again? Apparently, yes. Time is a flat circle.
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But that’s now what we have here. Congress hasn't delegated to President Trump the power to prohibit discrimination against the sick. Not even close!
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But the undisputed hero of the night? Our Bella. She’s a real-life Lassie, except it was my dad and not Timmy and a glucose monitor not a well. /fin
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“Michigan, one of the hardest-hit states at the peak of the pandemic, has also been one of the most cautious states in reopening businesses and other activities. So far, Michigan has not seen the resurgence of COVID-19 that other states have.”
NEW: Michigan sees smaller growth in total
#COVID19
cases than Midwestern neighbors
11% growth in Michigan cases since Memorial Day weekend
Minnesota’s COVID cases up 58%
Wisconsin up 55%
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Incidentally, that’s why state COVID restrictions are generally being issued by executive order. State legislatures have delegated emergency powers to the governor, and he or she is exercising those powers.
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The Texas decision on the Affordable Care Act is out. The individual mandate is unconstitutional, the court rules, and the mandate can't be severed from the rest of the Act.
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Big news.
Breaking news: Sixth Circuit in Flint Water Crisis case allows due process claims to proceed against emergency managers and several state officials, overcoming qualified immunity. Another step closer to accountability.
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I'm gobsmacked. This judge honestly thinks the Constitution requires the elimination of the entire ACA -- including its Medicaid expansion, its provisions about calorie counts at chain restaurants, and its new rules on biosimilars -- because of an unenforceable "mandate"?
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Now, in rare cases, the president has himself been delegated authority to do discrete things, usually with respect to emergencies or foreign affairs. And he might use an executive order to exercise that authority.
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I am heartbroken to hear that Judge Stephen Williams has passed from COVID-19. A better man I have rarely met. Here he is officiating at
@kdaugirdas
's and my wedding. He will be missed.
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Shorter version of this op-ed: "Don't try to pack the court before waiting to see what the Supreme Court does, by which point you'll have lost one or both chambers of Congress and won't be able to do anything."
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This is a lie about something that genuinely matters. If you thought Hillary's emails were an important news story,
@nytimes
, you need to make it front-page news *every single day* that the President and the Republican Party are trying to defraud people into voting for them.
Republicans will totally protect people with Pre-Existing Conditions, Democrats will not! Vote Republican.
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This is mendacious.
@DanCrenshawTX
is talking about reinsurance waivers. They're technical, boring, and the Obama administration endorsed them.
The waivers that the Trump administration wants -- and that the bill would stop -- would absolutely screw people with pre-x conditions.
States that have successfully innovated under current law include Alaska, Maryland, Oregon, Maine, Wisconsin, Minnesota, and New Jersey.
They have saved money on premiums AND protected pre-existing conditions.
Dems are against that, AND lying about it.
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So breathe deeply. The Fifth Circuit is unlikely to take this frivolous case seriously, and the case will die without the Supreme Court having to intervene. In the meantime, the ACA will remain in effect.
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Oh wait, you don't have the text of the final bill yet? Huh. THEN MAYBE YOU SHOULDN'T BE VOTING ON IT TODAY.
Hey Republicans, I hear you're voting a new health-care bill today. Maybe do us a solid and, y'know, release the text of the final bill?
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It dislikes the law, and can muster the stupidest of fig-leaf arguments to claim that its essential elements should be invalidated. If this stands as a precedent, the rule of law will mean one thing in a Republican administration and a different one in a Dem administration.
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The court's decision is NOT limited to guaranteed issue and community rating. In the court's view -- and this is *absolutely* insane -- the entire Affordable Care Act is unconstitutional.
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This is a real argument appearing in a real amicus brief filed in Texas v. United States about why the individual mandate is unconstitutional.
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The judge entered a declaratory judgment, not an injunction. That means the Trump administration and the states are free to keep implementing the ACA. One district court judge's declaration doesn't bind the government nationwide.
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"There is no answer." Seriously? Hey, Judge O'Connor, I'm old enough to have lived through the repeal-and-replace debate. IT WAS LAST YEAR. And I'm confident about two things: (1) that Congress didn't repeal the whole ACA, and (2) that it did repeal the mandate penalty.
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What do the census case and the ACA litigation case have in common? Bad faith. From
@ThePlumLineGS
, with an assist from me:
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From Justice Breyer's dissent in Franchise Tax Board. Hard not to read this as a veiled warning about Roe v. Wade.
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By the way, the administration invites the court to enjoin the preexisting condition rules on January 1, 2019. And they've pulled a right-wing judge to rule on the case. Good luck with getting insurers to enroll under a cloud of uncertainty like that.
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To be clear, the ACA remains intact, and will remain intact for the foreseeable future. This case is not going anywhere fast, and the likelihood that the Supreme Court endorses this travesty of an argument is slim.
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The *only* point is to grab a headline that "President Trump issues executive order to protect people with preexisting conditions." Don't print that headline. Don't run that chyron.
It's a lie. Don't fall for it.
Say it loud, people. Unless President Trump is exercising a power that's been specifically delegated to him, an executive order directed at private parties has no more legal weight than a press release.
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When Trump was elected, I thought we'd probably be OK if we managed to avoid a global pandemic. Because that's when having level-headed and informed leadership can make a world of difference.
Yet here we are.
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If you want a somewhat longer primer on what's happening here, I wrote about the risk of the Trump administration's cravenness back when the case was first filed. But even I didn't think the administration was THAT unprincipled.
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This is your friendly pre-election reminder that a Texas judge is poised to eliminate the ACA's protections for preexisting conditions and has probably been holding off because he knows it'd be bad for Republicans in the midterms.
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My extended thoughts here:
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Again, I don't think that's likely, and a competing lawsuit in Maryland might force the Trump administration to keep enforcing. In the meantime, the ACA remains intact, this insane decision notwithstanding. /fin
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Pick your adjective. The arguments that the plaintiffs have offered in favor of their argument that the penalty-free mandate requires striking down the whole statute are silly. Laughable. Ridiculous. Unprincipled. And yet --
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The Michigan Supreme Court didn't say that "her use" of the law was unconstitutional. It declared THE LAW ITSELF unconstitutional. A law that has been on the books for 75 years!
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hey everyone i don’t mean to be cynical but what if republican senators don’t really care what he did
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I cannot emphasize enough how important this is, and how proud we should be, as Americans, of this.
Fantastic news that Congress is going to extend funding for PEPFAR.
The program has saved about 25 million lives — a monumental achievement that should make Americans proud.
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The judgment in the big Affordable Care Act is premised on the standing of two Texas consultants, John Nantz and Neill Hurley, who objected to being forced to buy exchange coverage. But now their lawyer won't say whether they've dropped that coverage.
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Some court will enter a stay -- probably Judge O'Connor himself, but failing that the Fifth Circuit or the Supreme Court. What's certain is that it's above the judge's pay grade to invalidate the entire ACA without any possibility of review.
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i am a real law professor and i rate this as true
My Twitter Law degree tells me that “absolute immunity” is the third-greatest amount of immunity, behind only “unlimited immunity” and “I’m Britney, bitch.”
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yes this is bad but maybe you don't fully appreciate that she had an email server in her basement
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That's big. So here's the score: no injunction, no refusal to enforce, and the stage is set for an orderly appeal, where the red states will surely lose. Can't we all go to sleep now?
*WHITE HOUSE: OBAMACARE LAW REMAINS IN PLACE PENDING APPEAL
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important update,
@darth
The World Health Organization has announced that dogs cannot contract Covid-19. Dogs previously held in quarantine can now be released. To be clear, WHO let the dogs out.
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Every debate, every stump speech, every commercial, for eight months. "The Trump administration is asking the Supreme Court to rip away your protections when you get sick." And to do so in the midst of a coronavirus pandemic too! Politically, it's a gift to Democrats.
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"Peak cases and deaths would have been 2-3x higher" if not for the governor's Stay Home orders.
A new report from the Imperial College COVID-19 Response Team shows that very few states dropped their
#COVID19
infection rate as low for as long as Michigan has.
This means that Michiganders who have done their part to slow the spread have, without a doubt, saved lives.
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This is the first time, I think, that I've been retweeted in print.
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Oh c’mon. They targeted precisely the kind of “voter fraud” that allowed them to disenfranchise Democratic voters. That was the point all along. You don’t have to be so damn credulous.
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Among other things, the Affordable Care Act now dangles from a thread.
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1/ Per Breyer, the red states and the individual plaintiffs lack standing in the big case involving the Affordable Care Act. The case is dismissed.
The holding here is one that I've discussed many times before, but let me walk you through it.
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I have some news! I've taken a leave from
@UMichLaw
to serve as Chief Legal Counsel to
@GovWhitmer
. I'm honored at the chance to serve and thrilled to work with the governor and her incredible team.
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I've got a post up on the Department of Justice's letter saying that it now believes the entire ACA must be enjoined.
I'm still processing how nuts this is.
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I'm worried that people are drawing the wrong lesson from Texas v. United States. Yes, the court remanded without deciding how much of the ACA had to go. Yes, the court said it's possible that the mandate could be fully severed.
But don't buy it. The writing is on the wall.
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Brilliant.
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I've said it once, I'll say it again. It's not a health-care bill, it's a tax-cut bill, financed on the backs of the poor.
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My son's got strong views about wolves. And he writes a good letter.
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What's more, California is going to appeal this decision. And it'll probably seek a stay pending appeal out of an abundance of caution -- though I don't think it technically needs to do so, since there's no injunction in place.
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Republicans can’t compromise on ACA because they can’t admit that the ACA is fixable.
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Who wrote the brief? Our friends Citizens United and a bunch of pro-gun organizations.
Yes, you read that right. Guns and money wrote this brief with paeans to St. Paul.
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Just your friendly coronavirus-era reminder that Texas and a consortium of red states have sued -- successfully, so far! -- to eliminate the Affordable Care Act and that the Supreme Court will decide the case in the fall.
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Think of that. A half-million people will get Medicaid coverage due to last night's election. Don't let anyone tell you votes don't matter.
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The Fifth Circuit decision in Texas v. United States is out. Here's the basic rundown: a win for the red states, and a defeat for the ACA, with a remand to the district court for further severability analysis.
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