Author: Nicole Huberfeld

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Thanks

Thank you to Dan and the rest of the CoOp crew for allowing me to return for June.  It has been, as always, an enriching experience.  Best wishes for an excellent summer!

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Bad Medicaid facts make bad spending precedent

The Healthcare Cases contain a major factual fallacy that Medicaid is somehow now two programs, old Medicaid and new Medicaid.  Dismayingly, Chief Justice Roberts persuaded Justices Breyer and Kagan to sign on to this ridiculous description of Medicaid.  And the dissent bought it too.  As I’ve said before, healthcare is an imperfect vehicle for constitutional change.  Here’s why that description is both wrong and potentially dangerous.

The Roberts plurality on Medicaid and the joint dissent both describe Medicaid as if it had been structured to cover certain categories of the poor as a way to protect states.  History tells us this characterization is quite far from the truth.  As I have described elsewhere, in 1965, Medicaid was limited to covering the unfortunately named “deserving poor” because the states had only provided benefits to the deserving poor.  That “choice” was not really a choice at all, but rather the result of path dependence on the part of both the states and the federal government.  Prior to the New Deal, states were responsible for welfare-type programs, and welfare programs only extended help to certain poor who were deemed blameless in their poverty.  This notion of blamelessness was a direct descendent of the Elizabethan Poor Laws, which found certain poor liable for their poverty and allowed assistance for only certain “deserving poor” – and those poor happened to be widows, orphans, disabled, and elderly.  Sound familiar?  It should, as these are essentially the same categories that were covered in 1965, when Kerr-Mills became Medicaid, a more centralized and clearly federal program. 

Since 1965, the federal government has slowly added to Medicaid eligibility, thereby also slowly eroding some of the old notions regarding the deserving poor.  And, the states have always had the option of extending Medicaid to poor beyond the old categories, an option that every state has exercised to some degree.  For example, all states provide some coverage to parents of needy children, not just pregnant women, and some states have covered childless, non-disabled adults under age 65.  Thus, extending eligibility and eliminating the categorical characterizations of eligibility is not unprecedented.  And again, that distinction lies in biases about who should receive governmental assistance that date to the colonial period, not a deliberate choice to protect states.  [more after the jump]

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Call for Nominations for Foundational Works in Health Law

The American Society of Law, Medicine & Ethics, the Section of Law, Medicine & Health Care of AALS, and the American Health Lawyers Association seek nominations of foundational works of scholarship in health law, very broadly defined, published in English before December 31, 2010.  We intend to publish an edited volume in an academic press.

Nominations must be accompanied by a brief description, not to exceed 300 words, of the importance of the scholarly work, addressed to:

Ted Hutchinson, Executive Director

American Society of Law, Medicine & Ethics

765 Commonwealth Avenue

Boston, MA 02445

thutchinson@aslme.org

 

The first round of nominations will close on December 31, 2012.

On behalf of the sponsors,

 Kevin Outterson

Boston University School of Law

mko@bu.edu

I. Glenn Cohen

Harvard Law School

igcohen@law.harvard.edu

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Starting to work beneath the surface of the Medicaid holding

Ok, folks, you read it here first.  In December, I stated that I thought the Court would be inclined to solidify the coercion doctrine but would be likely to uphold the Medicaid expansion.  I am still parsing the way in which the Court performed this legal novelty, because, as I noted yesterday, even though there were seven votes holding the Medicaid expansion to be coercive, five votes upheld Congress’s power to create the expansion but basically severed the remedy for noncompliance, thus effectively upholding the expansion while also expanding the coercion cause of action.  Though I was surprised at which justices were willing to agree that Tenth Amendment limits exist on conditional spending (Breyer? Kagan?), I was not surprised that the Court expressed its federalism project through the vehicle of Medicaid’s expansion.

Although this was the first time the Court has struck down federal spending legislation as coercive, the Court still has not given us a theory to understand how it will decide future coercion cases.  The Court refused to define coercion beyond assessing the Medicaid expansion as being “beyond the line” where “persuasion becomes coercion.”  (p. 55)   We do have two points of clarification, though.  First, Florida’s brief was clearly persuasive to the Chief Justice, because he bought the states’ argument that too much money could be taken away if the states do not comply with the Medicaid expansion.  This clarifies an aspect of South Dakota v. Dole’s coercion dicta, which could be read to mean either that Congress has offered too much money or that Congress threatened to take away too much money.  Here, the Court accepted that Congress can offer the money for the Medicaid expansion, but it took issue with the fact that the Medicaid Act gives HHS the power to take away all Medicaid funding.  So, Congress can offer a lot, it just can’t threaten to take it all away.

The second point of clarification is that the Court is willing to apply the Tenth Amendment as a limiting principle to conditional spending legislation under this newly solidified coercion doctrine based on the New York v. U.S. notion of “political accountability” (which I highlighted during oral arguments).  But, the opinion relies on prior federalism opinions such as New York and Printz, which are heavy on dual sovereignty and light on cooperative federalism.  Political accountability does not provide a framework for understanding how future coercion claims might play out.[more after the jump]   Read More

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Preliminary thoughts on today’s decision splitting the proverbial baby

Today, Chief Justice Roberts truly wore King Solomon’s crown. He managed to split the issue with regard to both the “individual mandate” requiring all Americans to have health insurance coverage by 2014 as well as the expansion of Medicaid making all Americans up to 133% of the federal poverty level eligible for Medicaid coverage. The Medicaid aspect of the decision is particularly confusing, given that one must count the votes twice to understand what has happened.

First, seven of the justices (Roberts, Breyer, Kagan, with Roberts writing in the majority; Scalia, Kennedy, Thomas and Alito, with Scalia writing for the joint dissent) voted that the Medicaid expansion was unconstitutionally “coercive” under South Dakota v. Dole. So, the first vote as to whether Congress has the power to require states to expand Medicaid was answered with a no; this is impermissibly coercive because the states have too much to lose if all of their Medicaid funds are at stake. This is the first time the Court has ruled that federal spending legislation is impermissibly coercive.

But, the second question is whether that historic vote for impermissible coercion means the Medicaid expansion fails in its entirety. [more after the jump] Read More

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Puzzling cite

Monday’s 5-3 decision in Arizona v. United States striking down most of Arizona’s immigration law has been well covered (see the on-line symposium hosted by SCOTUSblog).  But, I have not seen any coverage of a puzzling cite in Justice Scalia’s much-discussed dissent.  Justice Scalia would have upheld all of Arizona’s law, seemingly on the basis that states are sovereigns who have “power to exclude from the sovereign’s territory people who have no right to be there.”  Scalia viewed the law of naturalization as separate from the law of immigration and explained that Congress’s control over immigration did not need to be set forth as a separately enumerated power because a “sovereign nation” has inherent power “to forbid the entrance of foreigners within its dominions.”  To support this proposition, Scalia cited Article I, section 9, clause 1:  “The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year [1808]…”  (slip opinion at 7).  The clause is one of a few in the Constitution that prohibited Congress from outlawing slavery before 1808.  Despite avoidance of the word “slave,” this is not a hidden meaning.  Why would Justice Scalia choose this pernicious cite to support inherent immigration authority for both the federal government and the states?  He cannot have intended to equate immigration with importation of slaves.  Thoughts?

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Happy 40th Anniversary, Title IX

The National Women’s Law Center is having a “blog carnival” to celebrate the 40th anniversary of the passage of Title IX.  If you haven’t read this federal spending legislation, here it is:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance … [20 U.S.C. 1681(a)]

Interestingly, the law does not mention athletics, which is a common association with Title IX.  This week you can find many nice summaries of the law’s history and the ways in which athletics became intertwined with and affected by Title IX.

The law was passed the year before I was born, and I am certain that I have benefited from its influence.  When I applied to college, I did not worry that I would be rejected based upon my sex.  When I applied to law school, I safely assumed that I would not be the only woman in my class and that I could find a job based upon merit when I graduated.  We are not so far from women being excluded from education simply based on sex and being treated quite differently once on campus and graduated.  A fellow Penn alumna recently shared stories of her first days on campus in the 1970s, when women were segregated (into what is now a co-ed freshman dorm) and had restrictions on many aspects of their lives.  We’ve all heard Justice O’Connor’s experience of being unable to find a job in the law upon graduating at the top of her Stanford Law class in 1952 (except as a legal secretary).  What a difference for Justice Kagan, the youngest justice, who clerked for federal judges and was hired into a prominent D.C. law firm before teaching at premier law schools.  I am a child of Title IX, and though I could easily focus on ongoing inequalities, today I just want to be grateful that the law has existed for my entire life in education.

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Pre-postmortems

I was fortunate to hear Justice Ginsburg’s speech at the ACS National Convention on Friday evening, during which she reiterated her position about the value of dissents (to signal how Congress could change the law [think Ledbetter], and to make a point for historical purposes [think Gonzales v. Carhart]).  Of course, everyone in the audience was abuzz that Ginsburg was hinting at a dissent in Florida v. HHS, even though many were Court watchers who know better than to act as Supreme Court soothsayers. 

Every day brings more public speculation about the future of PPACA, and everyone seems to be making contingency plans.  This phenomenon may speak more to the unpredicability of the Roberts Court than it does to the merits of the arguments.  The current Court has been willing to revisit precedent, tweak it, sometimes even overrule it, and such willingness makes outcomes difficult to predict.  I also wonder if this speaks to the undertheorization of the Rehnquist Court’s federalism revolution (with nods to Dan and Paul over at prawfsblawg).  After all, Lopez is really a summary and categorization of existing commerce power precedent with a traditional state power overlay.  The commerce power has a long history of interpretation, including the seminal “plenary power” description from Chief Justice Marshall.  But, little tells us how the Roberts Court will read the Commerce Clause. 

This is even more true for the spending power question in the case.  The spending power is so undertheorized it basically has no theory.  The Dole test for conditional spending is merely a Rehnquist-style summary and categorization of prior spending precedent, but none of that precedent provides a theory either, unless you believe the contract analogy from Pennhurst rises to the level of theory.  The power to spend also has no early, foundational Marshall interpretation like Commerce or Necessary and Proper.  Given that the federal government lacked significant ability to spend until the Sixteenth Amendment was ratified in 1913, the lack of early precedent is unsurprising.  But, the first case to provide a heuristic (U.S. v. Butler ) merely affirmed that the Hamiltonian view of the power to spend was correct, that spending is an enumerated power.  Not only did that case avoid expressing a theory for interpreting the General Welfare Clause, it went on to limit Congress by the Tenth Amendment, thus arguably producing a self-conflicting result.  With no underlying theory, the federalism questions and topic-specific healthcare questions stand on a house of cards.

So, why all the pre-postmortems?  Maybe because we still haven’t figured out what most advanced countries did a long time ago – we all do better when we are all well.  I was speaking with someone from Scotland recently, and he was befuddled by the fight over achieving universal health insurance coverage in the United States.  He asked a question that should have been rhetorical, “Isn’t healthcare a good thing?”  If we haven’t decided that healthcare is both essential and good for all of our citizens, then no amount of preparation will facilitate the actual postmortems.

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Pondering the vehicle for change

I have just returned from the perennially-satisfying Health Law Professors Conference at ASU (where it was hot enough to singe your eyebrows).  For folks interested in any aspect of healthcare law, this conference is highly recommended; the panels are strong on substance, the people are unfailingly collegial, and the event is bound to be near you at some point, as it moves to a different law school each June.  This year I shared a panel entitled “Theories of Health Reform in the United States” with three excellent speakers, including CoOp co-guest blogger David Orentlicher (Rights to Health Care in the United States: Inherently Unstable)Abby Moncrieff  (Healthcare Federalism, Healthcare Rights, and the ACA), and Christina Ho (Recursivity and Health Reform in the US: An Application of Niklas Luhmann’s Essays on Self-Reference). 

I gave my talk the hilariously vague title “Healthcare as a Vehicle for Constitutional Change” when I submitted the abstract many months ago.  It turned out, though, that this title was both useful and not a red-herring.  I presented elements of an essay on Post-Reform Medicaid, including a point I mentioned here in December that the United States has not told a consistent story about Medicaid to the Court this term.  In Douglas v. Independent Living Center, the Solicitor General articulated a deferential stance toward the states, a position consistent with longstanding states’ rights concerns in the Medicaid program.  On the other hand, the federal government has advocated a very broad view of federal authority under the spending power to modify and expand Medicaid in Florida v. Health and Human Services. Adding to the confusion, Congress has acted in ways that are contradictory regarding Medicaid throughout the program’s history, and those conflicting attitudes have been accentuated by the executive branch’s dissonant litigation strategies this term. 

I posited that these competing visions make it difficult for the Court to get the decision in Florida v. HHS “right.”  If the United States cannot present a cornerstone of the universal health insurance design in a coherent manner, then the Court’s job is much harder in both Medicaid cases this term.  It seems that the healthcare aspect of Florida v. HHS has been lost before the Court, making healthcare a sub-optimal “vehicle for constitutional change.”  The pithy decision issued in Douglas provides an example.  While the Breyer majority articulated concern for Medicaid as a program in enunciating the reasons to allow HHS to exercise primary jurisdiction, the Roberts dissent only described Medicaid as “spending legislation” and jumped right to federalism, spending power questions, and clear statement rules.  It is easy to see how the Court could jump to the big constitutional questions in Florida v. HHS.  (It also happens that the result in Douglas aligns with a study published in Health Affairs regarding political affiliation and attitudes toward healthcare access, but that is probably a topic for anther day.)

The Medicaid expansion is predicted to cover 16 million new lives; added to the existing 69 million Medicaid enrollees, Medicaid would become the nation’s largest health insurer covering some of our most medically-fragile and poorest citizens.  Much is at stake on the ground, but healthcare may not be a very good vehicle for the change that could be approaching.

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Preparing for the Three Ring Circus (But Not Yet)

Many, many thanks to Dan and the other CoOp regulars for having me back this month.  For Court watchers, June can feel like a vigil for the term’s final, big decisions, but this year that tension is heightened in anticipation of all that may occur in Florida v. U.S. Department of Health and Human Services.  To wit, SCOTUSblog has issued what is effectively an emergency preparedness plan.  I am working on a presentation and a workshop paper for two conferences related to the spending and healthcare action this term and will turn to my favorite topics soon.  But, as Gerard noted recently, many are suffering from healthcare reform overload, malaise, exhaustion… .  Accordingly, as I am coming up for air after grading 70 Constitutional Law essay exams (what is that, at least a thousand pages of grading?), I am thinking about the semester’s high and low points and ways in which I can improve my classroom performance. 

There is nothing like the marathon of grading to initiate this kind of reflection, which I think is a useful exercise before diving into the pleasures of summer research and conferences.  I imagine we have all experienced the gratification of seeing that our students have learned something well and rose to the challenge on an exam, and the disappointment of realizing that no one understood a word we said on a particular topic.  It can be hard to self-correct during the semester except to clear up the immediate points of confusion (though I do make notes in my syllabus when topics don’t proceed as planned).  But, the next year’s students can benefit from the prior year’s lessons, some of which can be learned from student evaluations, and some of which can result from ‘exam reflection.’  Taking a moment to reconsider can result in fruitful actions such as better exams, rewriting part of a syllabus, restructuring a class to introduce material better, considering supplemental materials, or revisiting casebook choices.  Sometimes a deliberate choice not to act occurs to see if the issue is a blip or a trend. 

In light of these musings, I have two questions, one general, and one more specific to Con Law:

1.  Do you use exams to reflect on the success of the semester’s teaching?  If so, how?  What kinds of issues do you think warrant attention given the limitations of the law school exam structure?

2.  Do you provide any background materials that are the equivalent of the civics lessons of yore?  Every year I have students come to my office concerned that they will be left behind in Con Law because they know virtually nothing about American history, politics, civics, or the Constitution.  My first assignment is always to read the Constitution, which levels the playing field a bit (funny how many poli sci majors think they know everything but have never actually read the document).  But, I have yet to find a good, concise background reader for my nervous con law newbies.  I don’t think this lack of background affects exam performance, but I would like to find a good resource.  Suggestions?