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UCLA Law Review Vol. 61, Issue 1

Volume 61, Issue 1 (December 2013)
Articles

Against Endowment Theory: Experimental Economics and Legal Scholarship Gregory Klass & Kathryn Zeiler 2
Why Broccoli? Limiting Principles and Popular Constitutionalism in the Health Care Case Mark D. Rosen & Christopher W. Schmidt 66

 

Comments

“Let’s Have a Look, Shall We?” A Model for Evaluating Suspicionless Border Searches of Portable Electronic Devices Sid Nadkarni 148
An Article III Divided Against Itself Cannot Stand: A Critical Race Perspective on the U.S. Supreme Court’s Standing Jurisprudence Raj Shah 198

 

 

 

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Diabetic Kids, All Kids, and School Nurses

Much to the relief of many parents whose children have diabetes, the California Supreme Court ruled recently in American Nurses Ass’n v. Torlakson that insulin shots can be administered by school personnel who volunteer and get trained for the job. School nurses, the court ruled, are not required under state law. That’s a good thing for the kids who attend the 95% of California public schools that have no fulltime school nurse. It’s good for their parents as well, since some schools were telling parents to come to school to give their kids their shots, something most employed parents had difficulty doing without upsetting their employers.

But to say, as the American Diabetes Association does, that the decision should make parents of diabetic kids feel confident that their child is in good hands at school is a bit of an overstatement. Whether they can get a routine shot of insulin isn’t the only health issue that kids with diabetes face during the school day. Some will face emergency health issues specific to diabetes, including hypoglycemia and hyperglycemia. Sometimes, it may take someone with medical training to know whether a shot should be administered at all or if it’s time to do something else, such as calling the ambulance. Diabetic kids also face health issues that other kids face. Like other kids, they fall off of climbing equipment and run into each other, and they may need to be assessed for concussions. Like other kids, they may get too hot when their team is practicing in hot weather, and someone with training will know best whether to get emergency medical care.  Like other kids, they may get sick at school and need to be assessed for whether they need an hour on a couch or a call to a parent. Just as important, someone needs to figure out if it’s time to sound the alert about a communicable disease at the school.

The California legislature apparently decided that school nurses aren’t necessary because of the expense. And indeed it may be difficult to justify spending money on nurses when paying for teachers sometimes seems like a luxury. But what the parents of those California kids with diabetes know, as does the American Diabetes Association, is that a nurse is a better and safer alternative for the kids than a volunteer staff member, even one who is trained. Looking carefully at the diabetic kids, further, helps us understand that school nurses are a very good idea for all of the kids, not just those with chronic conditions. This happens a lot when a person has a disability – solving that person’s problem can improve the lives of others. (Think about curb cuts for wheelchairs the next time you’re pushing a stroller or pulling a piece of luggage on wheels.) All parents, not only those with diabetic kids, need to have confidence that someone at the child’s school is capable of paying attention to serious medical issues. It’s a good issue for parents to join together to solve.

 

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Special Kids, Special Parents

First, many thanks to my exceptional and delightful colleague, Danny Citron, for inviting me to blog on Concurring Opinions. My blogging goal is to get you to focus on how law and policy could attend to the needs of family caregivers of special needs children. “Four in ten adults in the U.S. are caring for an adult or child with significant health issues,” according to a new Pew Research Center study. One would think that this large and growing population of family caregivers would command some attention. If they refused to do the job, after all, millions of frail elderly people, permanently-disabled veterans, and chronically-ill and disabled children could be left with nobody to meet their physical, emotional or medical needs. Social welfare organizations and institutions would be overrun, and social provision expenditures would skyrocket.

Refusing to do the job is not an option for many family caregivers, of course, for thousands of reasons, including love, duty and generosity of spirit. But many pay a price in terms of physical health, social isolation, and economic security. In my work about families raising children with special needs, I argue that we need to find ways to spread the costs so that they do not continue to fall almost exclusively on family members who step up.

Here are three examples of law and policy being blind (or at least astigmatic) to the impact of care-giving on these parents. First, when a child’s parents divorce or separate, family law entitles the parent who lives with the child to child support and, in some unusual situations, alimony. Child support is calculated on the basis of the child’s needs, and alimony is determined based on what the payee needs. Both assume that, ordinarily, both of the child’s parents will be economically productive. Where the parent’s special care-giving responsibilities interfere with that parent earning a living, however, child support and alimony are not usually adjusted–there’s no “chalimony.” Second, the public benefits system picks up very little of slack for parents when special care-giving responsibilities interfere with the parent’s earning capacity. Worse yet, since the mid-1990s, states became subject to increasingly stringent requirements in federal law about tying public benefits to the efforts of recipients to get and hold employment. A different route is not unimaginable: in 2009, a stipend was enacted for family caregivers of veterans left permanently disabled during their service in recent wars. Nothing similar, however, exists for parents. Third, if a child’s special needs affect his or her ability to benefit from school, federal law has guaranteed since the mid-1970s that the child will nonetheless be provided with a “free and appropriate public education.” The statute is not blind to the child’s caregivers; in fact, it gives parents specific rights in terms of participating in planning the child’s educational program. What it does not do, however, is make sure that parents can exercise their rights in ways that make sense if their lives are over-stressed because they are caring for special needs children.

As my work continues, I’m looking for additional examples of law and policy that attend to the needs of family caregivers for special needs children, and to those that don’t. If you can suggest a new avenue of research, please let me know.

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The Contraception Mandate Part II

In my last post, I argued that the requirement that religiously affiliated organizations include contraception in their health insurance plans does not violate the Free Exercise Clause. That’s not such a hard argument to make given the Employment Division v. Smith rule that neutral laws of general applicability are constitutional, no matter what kind of burden they may create for religious practices.

The Religious Freedom Restoration Act (RFRA), on the other hand, is easier to violate. RFRA was passed in reaction to Employment Division v. Smith. Congress wanted to restore the more demanding (at least on paper) pre-Smith test for religious liberty claims. The Supreme Court struck down RFRA  as applied to the states but not as applied to the federal government. Under RFRA, a federal law cannot impose a substantial burden on a person’s exercise of religion unless it passes strict scrutiny.

Saving the question of whether the contraception mandate imposes a substantial burden for another post, would it pass strict scrutiny? Does the contraception mandate advance a compelling state interest in a narrowly tailored way? It is not hard to come up with compelling reasons why women who do not want to become pregnant should have access to contraception. Women’s ability to control their reproduction is essential to their wellbeing, their bodily integrity, and their ability to participate as equals in the social, economic, and political life of the nation. In fact, the failure to cover contraception may well amount to sex discrimination if a health insurance plan covers all basic preventive care except for pregnancy-related preventive care like contraception. (While pregnancy discrimination is not considered sex discrimination for equal protection purposes thanks to Geduldig v. Aiello, it is sex discrimination for Title VII purposes thanks to the Pregnancy Discrimination Act.) Promoting women’s health, liberty, equality, and equal access to health care are all compelling state interests.

Nevertheless, at least one court has concluded that the contraception mandate was not motivated by a compelling interest because it contains too many exceptions, such as the ones for grandfathered plans and small employers. So, while the court acknowledged that “the promotion of public health” is generally a compelling state interest, it held that “any such argument is undermined by the existence of numerous exceptions to the preventive care coverage mandate. . . . A law cannot be regarded as protecting an interest of the highest order when it leaves appreciable damage to that supposedly vital interest unprohibited.” I disagree. The number of exceptions might matter if there were some question about whether the state’s interest really was compelling or not. If we are not sure about the importance of uniform appearance among police officers, numerous exceptions to grooming requirements might lead to the conclusion that it is not as important as the state claims. However, such exceptions should not matter when the state’s goals have long been recognized as compelling — and surely we are past the point of debating whether promoting women’s liberty and equality and preventing sex discrimination are compelling state interests.

Perhaps, then, it could be argued that the law is not narrowly tailored. How strict the tailoring must be under RFRA in not clear. If RFRA is meant to reinstate the pre-Smith test as practiced, then it is not very demanding, since the Supreme Court rarely found that laws failed strict scrutiny in Free Exercise Clause challenges. In any case, one argument that should be rejected is that the law is not sufficiently tailored because the government could provide contraception instead. But that can’t be right. Imagine a bookstore that refused admittance to Hispanics. Or imagine an employer whose insurance covered cancer screenings for white employees but not Asian ones. Now imagine the bookstore or employer arguing that a law banning race discrimination in places of public accommodation or in the provision of employment benefits fails strict scrutiny because the state could sell the books or provide the benefits instead. Such a claim is a distortion of strict scrutiny and should fail.

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The Contraception Mandate Part I

The Affordable Care Act is changing the health care landscape. Among the changes is that employers that provide health insurance must cover preventive services, including contraception. Although the requirement does not apply to religious organizations, it does apply to religiously affiliated ones. This “contraception mandate” has generated a huge outcry from some religious leaders, most notably the United States Conference of Catholic Bishops. They insist that forcing Catholic hospitals, schools, or charities to include contraception in their employee insurance plans violates religious liberty.

It doesn’t. It certainly doesn’t violate the Free Exercise Clause. After Employment Division v. Smith, neutral laws of general applicability are constitutional, regardless of the burden they may impose on religious practices. Indeed, the law upheld in Smith banned a religious sacrament. But it was neutral, in that it did not intentionally target religion, and it was generally applicable, in that it was neither riddled with exceptions nor grossly underinclusive. The regulation requiring employers who provide health insurance to include contraception in that coverage is likewise a neutral law of general applicability.

While a recent Supreme Court decision (Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC) carved out an exception to this “neutral-generally-applicable-laws-do-not-violate-the-Free-Exercise-Clause” rule, it does not apply here. This exception — which holds that religious institutions are immune from neutral, generally applicable anti-discrimination laws when they are sued by their ministers — was designed to protect churches’ ability to pick their leaders without interference from the state. However, the provision by religiously-affiliated organizations of health insurance to their employees, many of whom do not belong to the same faith as their religious employer, clearly does not involve ministers or internal church governance. In short, there is no valid Free Exercise Claim.

What about the Religious Freedom Restoration Act? Stay tuned.

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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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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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Stanford Law Review Online: Health Care and Constitutional Chaos

Stanford Law Review

The Stanford Law Review Online has just published an Essay by Eric Segall and Aaron E. Carroll entitled Health Care and Constitutional Chaos: Why the Supreme Court Should Uphold the Affordable Care Act. Professor Segall and Dr. Carroll explore the constitutional and practical arguments for upholding the ACA:

The Supreme Court’s decision on the constitutionality of the Affordable Care Act (ACA) will likely be handed down on the last day of this year’s term. If the Court finds that the ACA—either in whole or in part—violates the Constitution, the health care industry will be shaken to its core. And, no matter what legal justification the Court uses to invalidate the ACA, the structure of constitutional law will be severely undercut. The resulting medical and legal chaos will be expensive, divisive, and completely unnecessary. Nothing in the text, history or structure of the Constitution warrants the Court overturning Congress’s effort to address our national health care problems.

They conclude:

The leading academic proponent of a decision overturning the ACA has conceded that the law is an attempt to “transform a sixth of the national economy.” Whatever can be said about that economic plan as a policy matter, there can be no question that (1) it is a regulation of commerce among the states; and (2) there is no textual or precedential constitutional principle that suggests Congress can’t use all reasonable tools to regulate that commerce, including the use of an individual mandate.

Read the full article, Health Care and Constitutional Chaos: Why the Supreme Court Should Uphold the Affordable Care Act by Eric Segall and Aaron E. Carroll, at the Stanford Law Review Online.