Thursday, March 05, 2015

Abigail Moncrieff on King v. Burwell

Frank Pasquale

Sarah Kliff has told the extraordinary story of the employee benefits lawyer who sparked King v. Burwell. Might a federalism-focused amicus brief in the case undo the challengers? Here's some background:
[I]f the Court adopts the petitioners’ interpretation of this statutory provision, millions of people would be cut off from the financial assistance that largely underpins the Affordable Care Act. [Abigail] Moncrieff’s brief argues the petitioner’s interpretation of the statute would render the statute unconstitutional under two principles of federalism: that Congress can't coerce states into implementing federal programs, and that all states must be treated equally.
As Koppelman notes below, the same states' rights ideas at the core of the conservative win in NFIB v. Sebelius may be the undoing of the challenge in King v. Burwell. For an in-depth interview with Abigail Moncrieff on the oral argument, check out the podcast, The Week in Health Law (co-hosted by Nic Terry and me, and also available on iTunes, Stitcher, and other outlets).

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