Author Archive for nicole-huberfeld
Thanks
posted by Nicole Huberfeld
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!
July 6, 2012 at 3:47 pm
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Bad Medicaid facts make bad spending precedent
posted by Nicole Huberfeld
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]
July 5, 2012 at 4:40 pm
Posted in: Constitutional Law, Health Law, Supreme Court
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Call for Nominations for Foundational Works in Health Law
posted by Nicole Huberfeld
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
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
July 3, 2012 at 2:58 pm
Posted in: Articles and Books, Health Law
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Starting to work beneath the surface of the Medicaid holding
posted by Nicole Huberfeld
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 the rest of this post »
June 29, 2012 at 3:17 pm
Tags: Constitutional Law, health care, Supreme Court
Posted in: Constitutional Law, Health Law, Supreme Court
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Preliminary thoughts on today’s decision splitting the proverbial baby
posted by Nicole Huberfeld
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 the rest of this post »
June 28, 2012 at 3:57 pm
Tags: Constitutional Law, health care, Supreme Court
Posted in: Constitutional Law, Health Law, Supreme Court
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Puzzling cite
posted by Nicole Huberfeld
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?
June 27, 2012 at 4:20 pm
Posted in: Constitutional Law, Supreme Court
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Happy 40th Anniversary, Title IX
posted by Nicole Huberfeld
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.
June 21, 2012 at 2:41 pm
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Pre-postmortems
posted by Nicole Huberfeld
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.
June 20, 2012 at 4:06 pm
Tags: Constitutional Law, federalism, health care, Supreme Court
Posted in: Constitutional Law, Current Events, Health Law, Supreme Court
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Pondering the vehicle for change
posted by Nicole Huberfeld
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.
June 11, 2012 at 10:36 pm
Tags: Constitutional Law, federalism, health care, Supreme Court
Posted in: Constitutional Law, Health Law, Supreme Court
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Preparing for the Three Ring Circus (But Not Yet)
posted by Nicole Huberfeld
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?
June 5, 2012 at 3:39 pm
Tags: academia, Law School, Supreme Court
Posted in: Law School (Teaching), Supreme Court
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Uncertainty on ACA Day 3 (exhaustion sets in)
posted by Nicole Huberfeld
Again, some initial impressions. Listening to the severability arguments today, the justices appeared to be pushing Mr. Clement pretty hard. He is a remarkable orator, but he steadfastly proposed a judicially unworkable standard, that the law cannot be left a “hollowed out shell,” and it was clear that the justices were asking for more than a rhetorical device. They also just seemed uncomfortable with striking the entire ACA when many aspects of the law are unrelated to the Title I private insurance reforms. But then, as Mr. Kneedler took the podium, the justices were equally skeptical of his proposal, to strike just the individual mandate, guaranteed issue, and community rating requirements. It seemed that the justices favored some kind of severability, but none of them were interested in the task (Justice Scalia called it a violation of the 8th Amendment). Also fascinating was the amount of leeway Mr. Farr was given to ‘bat cleanup’ in his Court-appointed role. He was permitted long monologues that the justices’ aggressive questioning had not allowed until he spoke, and his exposition was excellent. He even responded well to a question regarding the economics of insurance that Kneedler didn’t really answer. Nevertheless, his position, that only the individual mandate should fall, was not the clear winner either.
As for the Medicaid arguments, it seems possible that the Medicaid expansion will survive. The more left-leaning justices questioned Mr. Clement relentlessly and once again his performance was notable, but his responses were a bit repetitive; they lacked the eloquence of the argument regarding the individual mandate, and his position was rather extreme. The states are, after all, asking the Court to ‘fashion’ doctrine for them. In some ways, the justices’ questions reminded me of the way the majority and dissent were articulated in Douglas v. ILC — the justices that seemed to favor upholding the expansion were attuned to the nature of the Medicaid program and the heavy burden the federal government will shoulder for the expansion population, whereas the justices that were interested in the concept of coercion almost seemed to find the vehicle of Medicaid irrelevant.
General Verrilli did not shine in his defense of either the spending power or Medicaid. When repeatedly asked why the Secretary of HHS does not exercise the power to withdraw all funding, his simple answer should have been, “because it would harm the beneficiaries of the program, so it’s never been done in 47 years.” Instead, he made statments about not wanting to paint the Secretary into a corner and avoided the question. It was confounding, and Justice Kagan finally made the point for him.
Justice Kennedy sounded as if he was trying to import the New York v. US concept of political accountability into the spending power, but the other justices did not appear eager to apply New York to cooperative federalism programs. I still believe that the Court may try to find a way to clean up the concept of coercion (though the oral arguments did not shine a bright light on what the doctrine will be) but may not find this particular expansion to be problematic.
As a side note, Justice Scalia made his distaste for the invidual mandate pretty clear when he noted the political failures of enacting the law. (“I would have thought there was serious political strain – constraint on the individual mandate too, but that didn’t work. What you call serious political constraints sometimes don’t work.”)
Everyone sounded pretty punchy by the end. But also, I agree with Scott that Justice Sotomayor wins the gold star for excellent questions during this full set of arguments.
Some distance will help to make the tea leaves a bit clearer, perhaps. I agree with Jennifer that the Court often tries to give each side a ‘cookie’ but I’m not sure who gets which cookie at this point. Also, Eddie, I hear your point, but that is not how health insurance currently works in this country (see Kevin Outterson’s fine post at the Incidental Economist here).
March 29, 2012 at 12:52 am
Posted in: Constitutional Law, Health Law, Supreme Court
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Initial impressions of Day 2
posted by Nicole Huberfeld
Many thanks to Gerard for organizing our conversation about the Big Three Days. Just a few thoughts for Day 2, in no particular order. First, General Verrilli must have been wishing that Justice Sotomayor were the SG when she was articulating the United States’ three big arguments (“threads”, in her language). The U.S. has been disorganized in its defense of the private insurance aspects of this law, and it showed in today’s arguments. (By the way, how about her shout out to the 99%?)
Second, the Court often appears unnerved by the layers of complexity inherent in healthcare matters, and today was not much different. Justice Scalia in particular seemed determined not to understand how health insurance or health insurance markets work. And, General Verrilli could have done a much better job explaining risk pools; Justice Ginsburg had to jump in to help him. The repeated questions about the temporal argument being made by the states – that purchase at the point of needing medical care would be acceptable - showed a complete lack of understanding about how insurance works. No insurance can be purchased in the moment that insurance coverage is needed; if insurance could be purchased at the moment of the cancer treatment, or the auto accident, or the home fire, then insurance risk pools could not work – they would be all claims and no pool.
Third, I was surprised by Justice Kennedy’s initial deep skepticism, though it did seem like his stance softened by the time Mr. Carvin was at the podium. Though Kennedy seemed to be articulating one of his favorite themes (limited government undergirds liberty) the “assume for the moment that this is unprecedented” comment seemed unusually hostile. I don’t think it’s all in Justice Kennedy’s hands though, because although Chief Justice Roberts was also initially hostile to the U.S. position, he too seemed to change his tune when questioning Carvin. It almost sounded like he was annoyed with the bombastic style Carvin employed. Of course, this does not necessarily mean a change in heart on the constitutionality of the law itself, but I don’t think the Chief’s vote is set in stone (after all, remember his vote with the majority in Comstock).
I continue to find the states’ role in the individual mandate arguments to be questionable. The provision is not about the federal-state relationship, even if one considers it a bypass of state police power to regulate individuals in the health insurance market directly. The real federalism issue lies in the Medicaid question before the Court tomorrow…
March 28, 2012 at 12:41 am
Posted in: Constitutional Law, Health Law, Supreme Court
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So long again
posted by Nicole Huberfeld
Thanks to Dan and the folks at CoOp for letting me loiter for another month. I look forward to seeing you on the other side (of the PPACA litigation, that is). A final topic for coffee talk: can originalism play any reasonable role in healthcare questions given that medical care basically did not exist in 1787? Discuss…
January 31, 2012 at 1:05 pm
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Landscape of the Amici Supporting Florida’s Medicaid Brief
posted by Nicole Huberfeld
Reporting results for its monthly Health Tracking Poll published today, the Kaiser Family Foundation introduced the summary of its findings thus: “As the Supreme Court prepares to hear legal challenges to the health reform law in March, most Americans expect the Justices to base their ruling on their own ideological views rather than their interpretation of the law…. Other key findings include: The public doubts the Supreme Court renders judgments based solely on the law. Three-quarters (75%) say they think that, in general, Justices let their own ideological views influence their decisions while 17 percent say they usually decide cases based on legal analysis without regard to politics and ideology….” Notable for a term that has the potential to render a few blockbuster cases. (The public’s opinion of the Court is worthy of its own conversation, but it’s best left for another post.)
It is not just the general public that believes politics will win out; amici supporting the states seem to be appealing to ideology. In reading all of the amicus briefs supporting Petitioners’ claim that the Medicaid expansion is unconstitutionally coercive, several themes reflecting this strategy emerge, such as:
- Rejection or non-acceptance of New Deal era programs and precedents (the foundation of spending programs such as Medicare and Medicaid).
- Asking the Court to invent a coercion doctrine to limit the power to spend and/or seeking a return to U.S. v. Butler, the 1936 decision that articulated a Hamiltonian understanding of the power to spend as a separate enumerated power but that also declared the provision of the act at issue to be unconstitutional as infringing on states’ rights. (One brief even seeks reversal of Butler’s adoption of the Hamiltonian view in favor of the Madisonian view that the power to spend only supports the other enumerated powers.)
- Eschewing precedent - paragraphs unfold with no cites (the Texas brief is a good example). Citations that do exist are often to concurrences, dissents, scholarship, or think-tank reports. Justice Kennedy’s concurrences and dissents are well represented.
- Providing a limited picture of the Medicaid Act and the expansion by failing to account for prior mandatory modifications to the program as well as the statutory architecture of the program (which contains both mandatory and optional elements).
- An assertion that states cannot leave Medicaid because the federal government somehow improperly taxes state citizens, therefore states cannot tax their populations enough to pay for a state-based Medicaid equivalent. (This reflects an argument articulated by Professor Lynn Baker in her spending power articles, though it is not always attributed.)
- Hyperbolic analogies (such as characterizing states as drug addicts).
A couple of additional thoughts come to mind in reading the amicus briefs:
- State dependence on federal funding speaks to state behavior, not federal.
- Coercion is too nebulous and perverse to be a coherent constitutional doctrine. This is illuminated by the amicus briefs, which essentially assert that the more money the federal government offers, the less control it should be able to exercise over either the money or the states.
- The Court has no standard by which to judge whether the federal government offers too much money to states. Too much money relative to what? If healthcare is expensive, then in a cooperative federalism arrangement the federal government must offer sufficient money to encourage a state to implement a program that will be costly. The sum of money speaks to the nature of the program, but it does not dictate whether the federal government may permissibly offer the money to the states.
- The tax argument is a distraction that denies the existence and purpose of the 16th Amendment as well as long-standing reliance on redistributive tax policy.
Despite the Medicaid expansion being the surprise question before the Court for many observers, it may dictate the outcome of the case. The Court could dodge the Commerce Clause question by virtue of the Anti-Injunction Act but still limit congressional authority by adopting the anti-federal spending position of the states and their amici. An additional theme - that Medicaid is essential to the minimum coverage provision – could make it so that Medicaid is the downfall of PPACA rather than the individual mandate. Such a result would fly in the face of severability jurisprudence; but, much about this litigation is unprecedented.
January 27, 2012 at 12:35 am
Tags: Constitutional Law, federalism, health care, Supreme Court
Posted in: Constitutional Law, Health Law, Supreme Court
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Invitation to connect with a mentor
posted by Nicole Huberfeld
In furtherance of the mentoring line of thought, the invitation is as follows:
The AALS Section on Women in Legal Education is delighted to offer a mentoring program. Through this program, we match faculty members who share teaching, scholarship and work/life interests and issues.
If you would like a mentor in any of these areas, please contact one of the co-chairs of the Mentoring Committee, Leigh Goodmark, lgoodmark@ubalt.edu, or Naomi Cahn, ncahn@law.gwu.edu. Indicate your mentoring interests or any other questions, and we will search the website at http://law.unl.edu/wile to find the mentor who best matches your needs. We will contact the mentors on your behalf, and then send you their information.
January 25, 2012 at 10:30 pm
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Getting the Facts Right
posted by Nicole Huberfeld
For those of you following the Medicaid expansion issue before the Court: Sara Rosenbaum and Katherine Hayes, experts on the Medicaid program and health policy at GW, have posted a thoughtful response on the Health Affairs blog to the states’ misleading discription of the Medicaid program (which I also mentioned in my initial impressions of the states’ merits brief). Briefs supporting the states’ coercion position were just filed, and I will post initial impressions of the amici soon.
January 19, 2012 at 11:37 am
Tags: federalism, health care, Supreme Court
Posted in: Constitutional Law, Health Law, Supreme Court
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Initial impressions of the states’ brief in Fl. v. HHS
posted by Nicole Huberfeld
Is the sky falling? According to Florida et al., which filed their brief regarding PPACA’s Medicaid expansion today, the answer is a resounding yes. In many respects, this brief rehashes the coercion arguments made in the district court and Eleventh Circuit. The states continue to argue that they cannot afford the Medicaid expansion that will occur in 2014 (which I discussed on this blog here, here, and here), even though the federal government will pay 100% of the cost initially; and, they cannot afford not to participate in Medicaid because the costs of their medical welfare populations would be too high. Thus, the states claim to be coerced into accepting this “onerous” new condition on federal funds. Again, these arguments are not new.
One aspect of the brief that was new was the inclusion of the severability arguments through describing the Medicaid expansion within the context of the universal insurance aspirations of PPACA (see especially fn. 18). The states essentially contend that the minimum coverage requirement (“individual mandate”) gives impoverished Americans no option but to be in Medicaid, which in turn makes it so that the states cannot opt out of Medicaid. The states further assert that this was Congress’s plan – to coerce the states by giving the poor no other options for obtaining minimum insurance coverage. The fallacious assumptions underlying this argument are too numerous to unpack at this late hour, but at least two thoughts can start the job: first, New York v. U.S. does not require the federal government to offer alternatives to conditional spending programs (unlike, say, when it exercises commerce authority – the insurance exchanges in PPACA, which are a point of contrast in the brief, are an exercise of Commerce Clause authority, and states can either create them with some federal funding or reject them and the federal government will create the exchanges in the states that choose not to act — all of this fits neatly within the New York architecture). Second, suffice it to say that the impoverished are not seeking private insurance alternatives to Medicaid.
Medicaid’s history is skewed by the brief more greatly than it was at lower court levels. For example, the brief ignores the fact that Medicaid has always contained mandatory elements; these mandatory elements were one of the major defining features of the program as it was amended from Kerr-Mills, its predecessor program. The brief also misrepresents the existence of mandatory eligibility and coverage standards and how they serve the aspirations of the program. Likewise, the brief either misunderstands or misrepresents the minimum essential coverage requirement, which is actually more flexible for states than the mandatory coverage provisions for other Medicaid populations. Additionally, the brief appears to misunderstand the statutory clarification that Medicaid provides both care and service (Congress here was responding to lower federal courts that had misconstrued certain language in the Medicaid Act).
Also, decisions such as Arlington, Dole, and Pennhurst that have required clear notice of conditions on spending are cited in the brief to support the states’ position that they have not voluntarily agreed to this condition on spending. Before this point, the states have not argued that any other Dole element was violated, but the states now seem to indicate that these conditions were not unambiguous and thus the ‘contract’ with the federal government is unconstitutional. In addition, the states offer a limiting principle that adopting their view of the coercion theory does not threaten other federal spending programs because Medicaid is by far the largest federal spending program (echoes of the federal government’s argument that nothing else is like healthcare).
Bottom line, the states want the Court to revive Butler and to expand the theory of coercion that the Court merely acknowledged in Dole and Steward Machine by relying heavily on Justice Kennedy’s concurrences and dissents that have expressed an interest in such an expansion. The question is whether a majority of the Court is interested in a new limitation on Congress’s power to spend.
January 11, 2012 at 12:36 am
Tags: Constitutional Law, federalism, health care, Supreme Court
Posted in: Constitutional Law, Health Law, Supreme Court
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Picking up where we left off…
posted by Nicole Huberfeld
My heartiest thanks to Dan for letting me stick around for another month. I would like to renew the request I made here for thoughts on mentoring. Though I appreciated the responsive post and comments that Paul Horwitz generated over at PrawfsBlawg, it did not create the kind of feedback that would allow me to facilitate more information about mentor/mentee opportunities. So, please feel free to email me or comment here, and I offer again to aggregate any information I receive.
January 4, 2012 at 12:46 pm
Posted in: Law School (Scholarship), Law School (Teaching)
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So long, and thanks
posted by Nicole Huberfeld
My thanks to Dan and the other regulars at CoOp for sharing their site, it has been a richly rewarding month. I am grateful for the comments here, by email, over on PrawfsBlawg, and elsewhere, and I look forward to continuing the conversations we have had. All the best for a happy and healthy 2012!
December 31, 2011 at 1:30 pm
Posted in: Uncategorized
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The inter-branch turmoil continues
posted by Nicole Huberfeld
After the Supreme Court heard oral arguments in Douglas v. ILC, the Secretary of HHS approved some of California’s deep cuts in Medicaid reimbursement. The Court requested additional briefing regarding the impact of the rate reduction approval, and the United States responded that the case was not moot because the grant of certiorari was based upon the Supremacy Clause question, not a determination as to the actual sufficiency of the state’s Medicaid payment rates. As soon as the rate reductions were approved by HHS, the California Hospital Association, the California Medical Association, and other Medi-Cal providers filed additional claims for injunctive relief.
Yesterday, U.S. District Court Judge Christina Snyder issued an injunction against California preventing the implementation of the HHS-approved rate reductions because they would cause irreparable harm to hospitals’ skilled nursing units (among other problems). The new injunction keeps the issues in Douglas alive, whether as a matter of payment rate adequacy or as a matter of private enforcement of state violations of the Supremacy Clause. Thus, even though HHS approved Medi-Cal rate reductions, the conflicts in Douglas have not been resolved.
There is also a fascinating real-time separation of powers quandry in this case, which is highlighted by the injunction that was just issued. Federal courts perceive states’ failure to abide by the mandate of the Equal Access provision, but HHS, whose job it is to ensure state compliance, turns a blind eye to state decisions that will limit access to medical care. In the meantime, Congress does not modify the Equal Access provision to contain stronger language or a clearer private right of action, it merely relies on implied private enforcement actions (see the amicus brief of Members of Congress). And HHS has issued paltry draft regulations to facilitate enforcement of the Equal Access provision, but the draft regulations do not guide CMS’s enforcement efforts so much as they provide some standards for states to self-report with little federal oversight. It seems that federal courts are acting because the legislative branch either can’t or won’t, and because the executive branch either can’t or won’t ensure that this federal law is followed. This makes the Obama Adminstration’s deference to state decisions all the stranger in Douglas, and courts’ patience with Equal Access litigation a bit more understandable. It also helps to explain the sort of underlying tone of confusion at oral arguments. The Court is left with the unenviable task of cutting this Gordian knot of inter-branch disfunction.
December 30, 2011 at 3:11 pm
Tags: Constitutional Law, health care, Supreme Court
Posted in: Constitutional Law, Health Law, Supreme Court
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