I am Tom Freeland, a lawyer in Oxford, Mississippi. The picture in the header is my law office. I'm on Twitter as NMissC

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On a quick, casual read over the attorney general’s filing in the BCBS case…

Kingfish has the pleadings filed by the insurance commissioner and the attorney general, and notes that after a three hour hearing, Judge Wingate announced he would rule Monday.

… I am struck by how convincingly they make the point that this is really just a dispute about state law and what powers the state statute do or do not give to the governor. The one point that the AG doesn’t quite seem answer is about procedural due process: There’s a statutory procedure for de-certifying a manage care insurer, it operates through the Insurance Commissioner, and has a set procedure there. The governor has nothing to do with that process, and simply ignored it to enter his order. What happened to the opportunity for a hearing the statute would seem to promise BCBS?

But, that said, does the question of policing whether the insurance commissioner or the governor is supposed to enforce that statute, and how (beyond the due process question) really the sort of question that gives rise to a constitutional tort?

The motion to intervene filed by the insurance commissioner highlights all this to me, and undercuts rather than supports the authority of the federal court to act. That motion makes clear that that much of this is intramural dispute under state law about state public official powers.

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