Maine, dismissed (for now)

As previously reported (at TIE and The Volokh Conspiracy, and NYT), the Governor of Maine is trying to pick a fight with CMS over the maintenance-of-effort (MOE) rules in the Affordable Care Act.

Thanks to an observant commentator (and a phone call from the Department of Justice), we can confirm that the First Circuit dismissed the filing sua sponte (on its own motion).  The very brief order is here. (h/t to FindLaw)

But don’t get excited – the state’s motion was just premature.  CMS has 90 days to consider the proposed State Plan Amendment. The clock is still running and Maine may well be back.

On the substance (assuming we get there eventually), Maine is trying to argue that Justice Roberts’ opinion struck down the MOE sections of the Affordable Care Act. That seems clearly wrong (MOE was briefed but this issue was not decided by Roberts at all). But Maine could make a slightly different argument:  that the new coercion doctrine announced in NFIB should be extended to also cover the MOE. On that question, I predict significant disagreement, even though I have argued at length (with Huberfeld and Leonard) that the government should prevail on this point as well.


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