Health Care Law

Showcase Panel II: Intergenerational Equity and Social Security, Medicare, Obamacare, and Pensions - Event Video

2014 National Lawyers Convention
Christopher C. DeMuth, John O. McGinnis, David A. Weisbach, Frank H. Easterbrook November 17, 2014

Several major federal programs directly tax the young to provide benefits to the elderly.  This is a main feature of the Affordable Care Act, the Social Security System as it currently works, and of the laws guaranteeing pensions.  In addition, the national debt raises intergenerational equity issues.  What obligations do these debts impose on the young?  Are they all of a piece or are the answers different in each case?  Is it true that this generation is likely to be poorer than the previous one?  What role does our legal system play in this?  How will the law address pensions that contribute to bankrupting cities or states?  What is the nature of the Social Security contract?

The Federalist Society's Practice Groups presented this showcase panel on "Intergenerational Equity and Social Security, Medicare, Obamacare, and Pensions" on Friday, November 14, during the 2014 National Lawyers Convention.


  • Hon. Christopher C. DeMuth, Distinguished Fellow, Hudson Institute, Inc., and former Administrator for Information and Regulatory Affairs, U.S. Office of Management and Budget
  • Prof. John O. McGinnis, George C. Dix Professor in Constitutional Law, Northwestern University School of Law
  • Prof. David A. Weisbach, Walter J. Blum Professor of Law and Senior Fellow, The Computation Institute of the University of Chicago and Argonne National Laboratory
  • Moderator: Hon. Frank H. Easterbrook, U.S. Court of Appeals, Seventh Circuit

Mayflower Hotel
Washington, DC

Supreme Court Cert Alert: Obamacare Case Granted, BP Case Pending - Podcast

Practice Groups Podcast
Jonathan H. Adler, John S. Baker, Jr. November 12, 2014

On Friday, November 7, the U.S. Supreme Court granted a petition for cert in King v. Burwell, the Fourth Circuit Court of Appeals case concerning the payment of subsidies to participants in federally-run versus state-run health care exchanges. Many believe a decision that cuts against the government's interpretation of the statute could undermine Obamacare. A temporary circuit split on the issue was obviated weeks ago when the D.C. Circuit Court of Appeals agreed to en banc review of a three-judge panel decision that reached a result different than had the Fourth Circuit. Our experts discussed why the Court agreed to hear a case that upheld a federal government interpretation of a federal statute.

Meanwhile, LSU Law School Professor John Baker has written a paper (available here) discussing the administration of the settlement fund in the BP Horizon oil spill. In that matter, BP asserts that the fund administrator is awarding damages to plaintiffs who were not harmed by the oil spill, and BP seeks relief in the Court. Later the week of November 10, the Court is expected to consider a cert grant in this important case.

  • Prof. Jonathan H. Adler, Johan Verheij Memorial Professor of Law, Case Western Reserve University School of Law
  • Prof. John S. Baker, Jr., Visiting Professor, Georgetown University Law Center and Professor Emeritus, LSU Law School

Federal Health Care Exchanges Not Eligible for Subsidies: Halbig v. Burwell - Podcast

Administrative Law & Regulation Practice Group Podcast
Jonathan H. Adler, Nicholas Bagley July 22, 2014

In a case decided on Tuesday, July 22, 2014 by the D.C. Circuit Court of Appeals, the court ruled that subsidies can be granted only to those people who bought health insurance in exchanges run by an individual state or the District of Columbia, and not to people who purchased health insurance on the federally run exchange, How did the court reach its conclusion, and is the court’s reasoning sound? Will the ruling make the Affordable Care Act financially unworkable? Is a final ruling by the U.S. Supreme Court inevitable?

  • Prof. Jonathan Adler, Johan Verheij Memorial Professor of Law, Case Western Reserve University School of Law
  • Prof. Nicholas Bagley, Assistant Professor of Law, University of Michigan Law School

Burwell v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Burwell - Post-Decision SCOTUScast

SCOTUScast 7-1-14 featuring Michael Moreland and Richard Garnett
Michael P. Moreland, Richard W. Garnett July 01, 2014

Michael MorelandRichard W. GarnettOn June 30, 2014, the Supreme Court issued its decision in Burwell v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Burwell. Both cases involve a challenge by small, closely held corporations to a regulation issued by the U.S. Department of Health and Human Services, often called the “contraceptives mandate,” under which companies are required to provide their employees with health insurance that covers a broad array of contraceptives, including some that may function as abortifacients. The corporations and their owners assert religious objections to this mandate, and the principal question before the Court is whether the mandate violates the Religious Freedom Restoration Act of 1993 (RFRA), which requires that the government not “substantially burden a person’s exercise of religion” unless that burden is the least restrictive means to further a compelling governmental interest.

In an opinion delivered by Justice Alito, the Court held that, as applied to closely held corporations, the HHS regulations imposing the contraceptive mandate violate the Religious Freedom Restoration Act (RFRA). Per Justice Alito, RFRA protects closely held for-profit corporations like Conestoga, Hobby Lobby, and Mandel, and  HHS’s contraceptive mandate substantially burdens the exercise of their religion. Assuming for the sake of argument that the government has a compelling interest in guaranteeing cost-free access to health care, the mandate is not the least restrictive means for the government to achieve this goal. Chief Justice Roberts as well as Justices Scalia, Kennedy, and Thomas joined the opinion of the Court. Justice Kennedy filed a concurring opinion. Justice Ginsburg filed a dissenting opinion which Justices Sotomayor, Breyer, and Kagan joined. Justices Kagan and Breyer also filed a separate dissenting opinion. The decision of the Tenth Circuit (Burwell v. Hobby Lobby Stores) was affirmed; The decision of the Third Circuit (Conestoga Wood Specialities Corp. v. Burwell), was reversed and remanded.

To discuss the case, we have Prof. Michael P. Moreland, Vice Dean & Professor of Law, Villanova University School of Law as well as Prof. Richard W. Garnett, IV, Professor of Law & Concurrent Professor of Political Science, Founding Director, Program on Church, State & Society, University of Notre Dame Law School.