Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Health Law and Policy

Boston University School of Law

Faculty Scholarship

Series

2015

Supreme Court

Articles 1 - 2 of 2

Full-Text Articles in Law

Will Uncooperative Federalism Survive Nfib?, Abigail Moncrieff, Jonathan Dinerstein Jan 2015

Will Uncooperative Federalism Survive Nfib?, Abigail Moncrieff, Jonathan Dinerstein

Faculty Scholarship

In October Term 2012, the Supreme Court decided two cases that are fundamentally at odds: NFIB v. Sebelius and Douglas v. Independent Living Center of Southern California. In NFIB, the Court held that the federal government, at least under some circumstances, may not use the threat of reduced funding in cooperative federalism programs to require states to comply with federal statutory requirements. In Douglas, however, the Court indicated that private litigants should sue federal agencies under the Administrative Procedure Act if those agencies refuse to enforce federal statutory requirements against the states. The problem is that the withdrawal of funding …


The Argument That Wasn't' And 'King, Chevron, And The Age Of Textualism, Abigail Moncrieff Jan 2015

The Argument That Wasn't' And 'King, Chevron, And The Age Of Textualism, Abigail Moncrieff

Faculty Scholarship

In these two short essays, I examine the somewhat bizarre — and potentially harmful — ways that Chief Justice John Roberts escaped the tension between legalism and realism in King v. Burwell, the Court’s latest Obamacare case. King presented a close legalistic case but a slam-dunk realist case in favor of an IRS interpretation of Obamacare. Roberts opted for the realistic result, but he got there through a bizarre combination of legalistic maneuvers. In “The Argument that Wasn’t,” I note that Roberts refused to make the full legalistic argument in the government’s favor, ignoring an invocation of the constitutional avoidance …