What Happens After the Collapse of the Skinny Repeal?

Daniel Weinstein
Health Law and Policy Society

In the Senate’s midnight healthcare vote on July 28, 2017, Senators Murkowski (R-AK), Collins (R-ME), and McCain (R-AZ) joined the Democratic caucus in voting against Republicans’ most recent attempt to repeal the Affordable Care Act (“ACA”), commonly known as Obamacare. This latest attempt, known as the “Skinny Repeal,” was a watered-down version of previous repeal bills that would have rolled back the insurance mandates for individuals and large employers, while also eliminating a series of taxes that help fund many ACA programs.

While the Skinny Repeal may seem attractive at first, such a bill could have potentially disastrous effects. Supporters of repeal bills argue that such efforts will stabilize the individual state insurance markets. However, the Skinny Repeal would have had the opposite effect: the lack of an enforceable individual insurance mandate would incentivize many healthy individuals to forego coverage, thereby stripping insurers of essential premium dollars that offset the costs of sicker individuals also insured through their plans. In short, the Skinny Repeal would have caused health insurance premiums to soar.

Obamacare is in no way perfect, as many on both sides of the aisle agree. The problem is that the Republican establishment is intent on a complete repeal-and-replace, and will not consider viable alternatives. This makes a fix politically impossible. So where does healthcare reform go from here?

The first option is one favored by President Trump: pressuring Majority Leader McConnell to change the Senate rules and eliminate the filibuster. This would allow Republicans to pass a repeal bill with just 51 votes in the Senate. However, currently there are not 51 votes to pass such a bill, as evidenced by the three failed repeal votes in the Senate in late July. Furthermore, Senators on both sides of the aisle are in favor of preserving the filibuster.

Another option is bipartisan legislation to stabilize states’ individual insurance marketplaces. In the House, a group of 40 moderate representatives calling themselves the “Problem Solvers Caucus” offer a proposal that would fund cost-sharing subsidies, create a stability fund to help compensate insurers for their customers’ medical costs, repeal the medical device tax, and narrow the employer mandate to businesses with 500 or more employees rather than 50 or more. In the Senate, Republicans still can introduce new amendments to the American Health Care Act of 2017. Committee hearings to explore options for shoring up insurance markets are expected starting in September. However, it seems both efforts are doomed due to leadership moving on to tax reform or digging their heels in for full repeal-and-replace.

While Obamacare is far from imploding, the Trump Administration could still further destabilize it. In fact, it has already started to do so by circulating information regarding Obamacare’s supposed imminent collapse, halting enrollment advertising, and directing the Internal Revenue Service to process tax filings that do not indicate insurance status, which undermines the individual mandate. Additionally the Administration could stop providing upkeep for the federally-facilitated marketplace which runs exchanges for 38 states, severely damaging Obamacare’s infrastructure. The Administration could also drop its pending appeal in House v. Price, an action that would end subsidies to insurers and make coverage largely unaffordable for those who need it most. However, the United States Court of Appeals for the District of Columbia Circuit has allowed 16 state attorney generals to intervene. This means that even if the Trump Administration drops the pending appeal, the states can continue to defend the subsidies.

These are only a few of the many ways in which Trump could try to dismantle the ACA. However, with every county in the country now offering at least one insurance option to its residents through the ACA marketplaces and a looming budget battle that could permanently fund the cost-sharing subsidies at issue in House v. Price, the Trump Administration is running out of both time and options to achieve its healthcare policy goals.

Bronfman Center Welcomes Voting Rights Activist Rabbi Saul Berman ’63

Written by Gabriel N. Slamovits

This weekend, The Bronfman Center: Hillel at NYU will be hosting an extraordinary NYU Law alum (1963), Saul J. Berman. He is an activist, widely published scholar, and Orthodox Rabbinic leader, and is currently a professor at Columbia Law School and Yeshiva University’s Stern College. He was active in voter registration drives in Selma in 1965, where he was twice arrested.

On Friday evening, Prof. Berman will be speaking during NYU’s Orthodox Jewish Shabbat services on the topic of “Prison in Selma 1965: Implications for Today.” The talk itself will be approximately 25 minutes and the total service time will last a little over an hour.

Services will begin at 4:55 PM and the talk will be at approximately 5:30 on the 5th floor of NYU’s Global Center for Academic and Spiritual Life (GCASL), 238 Thompson St, 5th floor – between Washington Square S and W 3rd St.

Law School Community Mobilizes in Defiance of Donald Trump

Written by Naeem Crawford-Muhammad, Editor-in-Chief

There is one topic of conversation dominating the halls of New York University School of Law – the hectic first days of President Donald Trump’s term in office. Following through on his campaign promise to impose a “total and complete shutdown” on Muslim immigration into the United States, Mr. Trump ordered a “travel ban” on citizens from seven Muslim-majority nations in the Middle East (Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen). While much of the law was stayed by multiple federal court rulings, thousands of protesters, including many NYU Law students and alumni, are crying foul.

Posted on Salon.com, 50 members of the Class of 2007 sent an open letter to their classmate, Jared Kushner, son-in-law and senior adviser to President Trump, raising “serious concerns regarding Mr. Trump’s stated policies and policy proposals.” Citing Mr. Kushner’s status as the grandchild of a Holocaust survivor, the alumni encouraged their classmate to “use his deep sense of compassion to influence the Trump Administration in a positive way.” According to the posting, an earlier version of the letter sent last December received no response.

The Muslim Law Students Association released a statement condemning a policy that they felt unfairly, and unconstitutionally, targeted individuals based on their faith and country of origin. “This order is very clearly a ‘Muslim Ban.’ During his campaign, President Trump repeatedly promised that he would ban Muslims from entering the United States. The President’s intent to establish a Muslim ban was corroborated by top Trump advisor Rudy Giuliani in a recent interview with Fox News, where he remarked that President Trump asked how to make such a ban legally possible,” said Nealofar Panjshiri.

In a letter to the Law School community, Dean Trevor Morrison raised objection to Mr. Trump’s travel ban, pledging to support the students, faculty members, and their families who hail from the affected countries. “We are committed to doing all we can to keep them safe,” said Dean Morrison. When reached for comment, Law School Public Affairs Director Michael Orey confirmed that no NYU Law students, faculty, or administrators have been refused entry to the United States as a result of Mr. Trump’s executive order.

Although no members of the Law School community have been directly impacted by the travel ban, appeals for students to volunteer their legal services or to participate in protests have proliferated across the campus in recent days.

Freshly returned from a regional meeting in Boston with over 20 chapters of the National Black Law Students Association, where responses to the Trump Administration were discussed, Kayla Vinson of the Black Allied Law Students Association released a statement calling on students to join protests and make their voices heard. “Implementation of this Executive Order will only lead to further harassment and racial profiling of marginalized communities. BALSA strongly opposes the Administration’s attempt to spread fear, racism, and Islamophobia.”

Frances Hartmann of Resisting Injustice and Standing for Equality (RISE), a student advocacy group founded by alumni from Hillary Clinton’s presidential campaign last December, encouraged students in need to make use of resources available at the Law School. “Students and staff seeking immigration legal advice should contact NYU’s Immigrant Defense Initiative (IDI) at 212-998-6640 or immigrant.defense@law.nyu.edu for a free consultation. The IDI is being coordinated by NYU Law’s Immigrant Rights Clinic in partnership with WilmerHale.”

Professor Alina Das, director of the NYU Law Immigrant Rights Clinic, is providing legal services to those who have been detained at airports and other points of entry, according to Dean Morrison’s statement. Professor Das will also join colleagues Adam Cox and Nancy Morawetz for a forum discussing the impact of the travel ban on Wednesday.

Claudia Carvajal and Nicolas Duque-Franco, co-chairs of the Latino Law Students Association (LaLSA) were concerned that the “travel ban” did not appear to undergo enough scrutiny from within the Trump Administration before it was signed.

“We are appalled that the President would issue a categorical ban on travel, or any such policy based on race or national origin, that violates the Constitution. Reports that (1) [Customs and Border Patrol] officials have, in certain places, ignored Judge Donnelly’s stay, and (2) that the travel ban was issued without [Homeland Security] or [Justice Department] review, are alarming to say the least. This raises serious concerns about the legitimacy of future policies issued by the White House.”


Law School Statement on President Trump’s Immigration Executive Order

The below statement was sent from the Office of the Dean to members of the Law School community earlier today. It is reprinted in full below.

Dear NYU Law Community:

As you are all no doubt aware, on Friday, President Trump signed an executive order that temporarily bars all refugees into the United States and indefinitely bars all Syrian refugees, and that temporarily bars nearly anyone from seven specified countries (all of which are majority Muslim), regardless of visa type.  On Saturday night, amidst swelling protests at airports around the country, a number of federal courts issued orders temporarily suspending certain aspects of the executive order, pending further litigation.

The leaders of institutions of higher education across the country—including NYU’s President Hamilton—have raised alarms about the executive order and its potential impact on our students and our schools.  I share that concern for the NYU Law community, which includes students and scholars from the listed countries or who have family there, and Muslim students who feel that the order is hostile to their religion or who fear that their countries of origin may be targeted next.  We are in touch with members of our community who may be immediately impacted to offer our support.  These students and scholars are all full members of the NYU Law community, and we stand behind them.  We are committed to doing all we can to keep them safe.

We at NYU Law know that our strength lies in our diversity, in our promotion of the free flow of ideas, and in our provision of a welcoming intellectual home for all of our members, without regard to religion or viewpoint.  Openness is the heart of our enterprise.  While this may be true at any institution of higher learning, it is especially so at our Law School, whose commitment to global engagement is deep and longstanding.  Having grown up outside this country before coming to the U.S. for graduate school, the potential repercussions of this executive order resonate especially powerfully with me.  Speaking for myself, I simply cannot square it with our core values.

I am proud that members of our community, led by Professor Alina Das, are providing legal assistance to people detained at airports and others whose immigration status is now in doubt.  Our students and alumni likewise are organizing to offer legal assistance to those impacted.  Together, these members of the NYU Law community are helping to ensure that any new immigration policy is consistent with our constitutional values and is implemented lawfully.  We will also provide opportunities to discuss these issues on campus.  This Wednesday’s Forum will focus on the executive order and will feature analysis and commentary by Professors Adam Cox, Alina Das, and Nancy Morawetz.

This is a time of uncertainty and fear for many.  For the time being, we recommend that members of the NYU Law community from the seven countries named in the order who are in the United States on a visa, or who are lawful permanent residents here, do not travel outside the country.  If you have any concern about how the executive order could impact you, please contact our Immigrant Rights Clinic’s Immigrant Defense Initiative or NYU’s Office of Global Services.  Our Office of Student Affairs and Office of Graduate Affairs can also offer guidance and support.  And, as ever, please feel encouraged to call the Wellness Center for counseling if you need it.


Trevor W. Morrison


Benefits of the Loan Repayment Assistance Program

Written by Natasha Goss

The high cost of attending law school is on many students’ minds. While some seek out jobs at large law firms to pay down six-figure debt, others enter public interest work and find themselves navigating complex payment assistance programs. Law Students for Economic Justice (LSEJ) recently produced a primer on NYU Law’s loan repayment assistance program (LRAP) that is meant to demystify the process.

When members of LSEJ realized they were uncertain about exactly what the program covered, they realized that the general student community could use guidance. LSEJ members developed the guide—an effort spearheaded by Hugh Baran (J.D. ’17), Heather Stoloff (J.D. ’18), and Audrey Winn (J.D. ’18)—in order to clarify the options available to NYU Law students exploring public interest work. While the Student Financial Services department does an excellent job providing one-on-one assistance, says Mr. Baran, an editor-in-chief of the NYU Review of Law & Social Change and coauthor of the primer, students who don’t seek in-person guidance are often left in the dark.

The guide explains the coverage offered by the NYU LRAP alone as well as by an integrated LRAP available to those whose employment makes them eligible for both federal and school-based loan repayment aid. “Back in the day, there was only one LRAP,” Ms. Stoloff notes, “and NYU makes more employment options available than under the federal LRAP program.” Although the coauthors would like to see these two programs offering more similar benefits, they agree that NYU Law “does leaps and bounds more on the program than other law schools.” The standard NYU LRAP expands assistance to those working for organizations not covered by federal assistance programs, including overseas NGOs, foreign governments, labor unions, and public-interest law firms.

Some students are concerned that savings or an increase in salary over time will make them ineligible for the program. Recipients may have other savings and assets up to $20,000 in excess of total debt, including non-loan debt such as mortgages and car loans. Retirement savings are exempt from this calculation.

LSEJ hopes that the guide will help inform students about LRAP and empower them to take fuller advantage of the loan assistance programs the school provides. In addition, they believe that students will be better able to advocate for changes in the program to serve their career goals. The LSEJ authors see room for improvement in one measure, however: they believe that the expected student contribution should be reduced or eliminated. Beginning with the class of 2018, that contribution increased from $1,700 to $5,000 for each year spent at the law school. Although the contribution is intended to make NYU Law graduates feel invested in their education, Mr. Baran feels that “students shouldn’t have to prove their commitment to public interest by taking out less than the loans they are eligible for.” Ms. Stoloff chose NYU because she “wanted to go to a school where being public interest was a viable option even without a scholarship” and knows many others who feel the same way.

One young lawyer taking advantage of NYU’s LRAP is Jehan Laner (J.D. ’15) who works for Community Legal Services of East Palo Alto. Although she received a Root-Tilden-Kern public interest scholarship, she still took out loans for housing while in law school. Ms. Laner noted that NYU’s LRAP covers her entire monthly payment entirely because she makes less than the salary cap, currently $80,000 under the integrated LRAP. She was also able to obtain repayment assistance for her bar exam loan. (Both the integrated and NYU-only LRAP cover bar loans of up to $10,000; because the program assumes on a ten-year repayment period, the process is simplified if applicants receive ten-year loans.)

Ms. Laner says she is “delighted that [LRAP] exists and that NYU covers monthly payments.” At the beginning of her participation in the program, she was required to transfer her loans to Fed Loan Servicing, and recalls that “the process was a little long, but the office is very helpful.” When delays led to her making one month’s payment out-of-pocket, she was reimbursed retroactively.

Generally, NYU disburses assistance to LRAP recipients semiannually; students pay their loan provider directly. Recipients must reapply to the program each year to confirm their eligibility.

LSEJ is working with the Office of Financial Services to integrate public interest education, including more frequent sessions on student loan strategies, into the annual schedule of student events. The coauthors emphasize that the guide is meant to provide students with a basic orientation to the types of assistance available, and encourages students to contact Student Financial Services for assistance in their particular situations.

Hays Civil Liberties Fellowship Issues Call for Applications

Written by Professors Norman Dorsen, Sylvia A. Law, and Helen Hershkoff, Co-directors of the Hays Program

Second-year students with a demonstrated commitment to civil liberties and civil rights and strong skills are invited to apply for 2017-2018 Fellowships in the Arthur Garfield Hays Civil Liberties Program.

The Program provides 3L students with fellowship support as they complete two substantial placements with non-profit organizations engaged in impact litigation, policy work, or direct services related to civil liberties and civil rights.  Specific areas of focus may include First Amendment freedoms, racial equality,  immigrants’ rights, criminal justice, economic justice  and reproductive and gender rights.

Materials describing the Program and the selection process are available on the NYU website and in VH room 308.  Applications must be submitted in print by  NOON on Thursday, February 16, 201 7 to Gail Thomas in VH ROOM 308. All applicants will be interviewed.

The current Hays Fellows will discuss their experiences in the Program and answer your questions from 5-6 p.m. on Tuesday, January 31st in the West Wing of Golding Lounge and from 5-6 p.m. on Wednesday, Feb. 1st in VH Smart classroom 202.  We encourage interested students to attend this meeting.