The Contraception Mandate Part II
posted by Caroline Mala Corbin
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.
November 2, 2012 at 11:05 am
Tags: contraception, contraception mandate, health care, religious liberty, RFRA, women
Posted in: Constitutional Law, Feminism and Gender, First Amendment, Health Law, Religion
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The Contraception Mandate Part I
posted by Caroline Mala Corbin
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.
October 29, 2012 at 1:52 pm
Tags: ACA, contraception, contraception mandate, equality, free exercise, health care, religious liberty, women
Posted in: Civil Rights, Constitutional Law, Employment Law, Feminism and Gender, First Amendment, Health Law, Religion
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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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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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Stanford Law Review Online: Health Care and Constitutional Chaos
posted by 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.
May 29, 2012 at 8:10 am
Tags: affordable care act, Constitutional Law, health care, health care reform, Supreme Court
Posted in: Constitutional Law, Health Law, Law Rev (Stanford)
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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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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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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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The other healthcare case with constitutional implications
posted by Nicole Huberfeld
Another Medicaid case this term also involves constitutional challenges – Douglas v. Independent Living Center of Southern California. That certiorari was granted is notable unto itself, as no circuit split existed, the Acting Solicitor General had recommended that the Court deny the petition, and the Court does not seem to relish hearing healthcare cases. The conflict in Douglas is whether California violated the Medicaid Act by enacting 10% reimbursement rate reductions, but this is not the question before the Court. The Court will consider whether the plaintiffs (a group of Medicaid providers and enrollees) may privately enforce the Medicaid Act against the state by claiming the state has violated the Supremacy Clause. Depending upon the timing of the opinion, Douglas may give us hints as to how the Court will decide Florida v. HHS, even though the United States has taken notably different positions in the two cases (about which I have written more here.)
Medicaid was intended to mainstream the poor into American medicine. The Medicaid Act thus informs states that they must pay healthcare providers “sufficient[ly]” to ensure the same access to medicine for Medicaid enrollees as others in the geographic region enjoy. This “Equal Access” provision is a pillar of Medicaid, and it has been a source of litigation against states that pay providers too little. In fact, before Gonzaga, lower federal courts were in agreement that the Equal Access provision was enforceable via section 1983. Through this litigation, the circuits developed varying methods for deciding sufficiency of payment, as the Centers for Medicare and Medicaid Services (CMS) has not enforced the Equal Access provision vigorously against the states. Despite the lack of agency action, ”sufficiency” is key to Medicaid’s success; if states do not pay enough for the medical services they buy, Medicaid enrollees will be forced into substandard care or will not be able to find caregivers at all, and the program would be undermined. Due to Gonzaga, and because CMS infamously does not monitor the states, Medicaid providers and enrollees have sought to enjoin states from violating the Medicaid Act under the Supremacy Clause.
California argued that the Medicaid Act does not include private actions, thus the plaintiffs could not seek an injunction because the statute fails to meet the “unambiguous conditions” element of the Dole test for conditional spending. This argument speaks to clear statement advocates on the Court (such as Justices Alito, Scalia, and Thomas), because it claims that states do not have clear notice of Medicaid enforcement actions in federal court. To the surprise of many, the United States’ amicus brief not only supported California but also urged that no private right of action exists for beneficiaries of federal spending programs (generally) to enforce federal standards against states. The Acting Solicitor General’s brief thus took a much bolder position than was expected. Remarkably, members of Congress and ex-administrators of the Department of Health and Human Services strongly disagreed with the SG’s position. In fact, the ex-administrators, which represent both sides of the aisle, insist that CMS relies heavily on private enforcement to police the states.
Douglas may lead the Court to articulate a default rule that ends implied private rights of action under the Supremacy Clause, but Medicaid is a flawed vehicle for such a sweeping, federalism-based decision. [More after the jump.]
December 21, 2011 at 12:15 pm
Tags: Constitutional Law, federalism, health care, Supreme Court
Posted in: Constitutional Law, Health Law, Supreme Court
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An additional thought on coercion
posted by Nicole Huberfeld
Recently I wrote about the coercion question posed by Florida et al. in the PPACA litigation. I have a quick follow up thought: I wonder if those advocating a more robust read of coercion recognize that their position could backfire if the goal is broadening federalism protections. An expanded coercion doctrine ostensibly would introduce the possibility of judicially enforcing states’ rights against the congressional power to spend. But the states should not assume that they are the only parties that could enforce federalism principles. Just last term in Bond v. United States, Justice Kennedy wrote that individuals can have standing to enforce the principles of the Tenth Amendment against the federal government because federalism protects not just the states but also individuals. In Bond, the conclusion was foreseeable, as a criminal defendant should be able to challenge the constitutionality of the statute under which she is charged. But the idea is muddied in a conditional spending program, wherein individual beneficiaries are often at odds with the state and contest its compliance with the federal government’s statutory conditions.
States have sought to prevent private enforcement of conditional spending statutes, and they have been more and more successful in closing the courthouse doors. For example, the Court has limited implied rights of action as well as actions under civil rights law 42 U.S.C. § 1983, decisions that narrow state exposure in federal court. In fact, this type of question is before the Court now in Douglas v. ILC, which confronts private enforcement of the Medicaid Act against states via the Supremacy Clause.
If the coercion theory is expanded, then private plaintiffs could be reintroduced into the federal courts, the very thing that states have been trying to prevent. And, individuals engaging in coercion analysis may have different goals than states. Further, it is possible that coercion could inaugurate a new theory by which those conditions, and the ways in which they are or are not executed by states, can be challenged by private plaintiffs. So, not only is state coercion by the federal government an inherently sticky question, but it also may not produce results that states desire.
December 14, 2011 at 4:17 pm
Tags: Constitutional Law, federalism, health care
Posted in: Constitutional Law, Health Law, Supreme Court
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Jumping ahead to Coercion
posted by Nicole Huberfeld
I had intended to address Douglas next, as it is a nice gateway for discussing Florida v. HHS, but a defense of the coercion argument just published in the New England Journal of Medicine Online inspired me to address the latter first. I will begin by discussing why I think the Court granted the petition for certiorari then turn to the Medicaid coercion question.
The Rehnquist Court excluded the Spending Clause from its federalism revolution inasmuch as that would have meant limiting the power to spend by the Tenth Amendment. When Chief Justice Rehnquist authored South Dakota v. Dole, the evidence is that he believed it was an easy and relatively inconsequential case. For those sane enough not to engage in the reading of tea leaves that is deciphering the spending power, a quick review. Dole articulates typical Rehnquist categories for evaluating the constitutionality of conditions placed on federal spending: the spending must be for the general welfare; the conditions must be clear and unambiguous (as modified by Arlington Central School District Board of Education v. Murphy); the conditions must have a nexus with the federal spending (“germaneness”); and the conditions cannot themselves be unconstitutional. After providing this test, Rehnquist noted that “in some circumstances the financial inducement offered by Congress might be so coercive as to pass the point at which ‘pressure turns into compulsion.’” No theory or constitutional provision was cited, but the opinion indicated that coercion would depend on the amount of money or percentage of money withheld if the state violates the conditions. It seems that the Court meant that coercion would be a Tenth Amendment, state sovereignty problem. But, Dole also explicitly stated that the Tenth Amendment was not implicated in the bar on unconstitutional conditions. So, while Dole provides the test for conditional spending, it is undertheorized and a bit self-contradictory. Nevertheless, the Rehnquist Court reiterated that the Spending Clause is not limited by the Tenth Amendment in New York v. U.S. and held to that position in subsequent cases, disappointing many who believed spending to be the next front in judicially-enforced federalism.
The Roberts Court has given hints now as to its approach to spending as well as federalism, and members of the Court have signaled interest in revisiting both topics. For example, Justice Kennedy’s concurrence in Comstock stated: “The limits upon the spending power have not been much discussed, but if the relevant standard is parallel to the Commerce Clause cases, then the limits and the analytic approach in those precedents should be respected.” Justice Kennedy also addressed broader federalism concerns in that concurrence, which were given free rein in his opinion for the Court in Bond v. U.S. as well. Likewise, Justice Alito’s opinion in Arlington was written as a spending power decision rather than a limited statutory interpretation, which I have written elsewhere resulted in a narrower clear statement rule for the second element of the Dole test.
Additionally, even though the Court seems to dislike hearing both spending and healthcare cases, it already has heard Douglas this term, so spending, federalism, and Medicaid are fresh in the justices’ minds. And, what could be a better vehicle for considering coercion than the largest grant-in-aid program that also constitutes the second largest portion of states’ budgets? (Education is first.) Further, numerous lower federal courts have attempted to construe coercion, but none have struck down federal legislation under the doctrine, making the issue ripe for the Court’s consideration.
Despite the idea of coercion arising repeatedly in federalism cases over the last thirty-ish years, its contours are unknown. At what point is the money being offered too much? And is the offer really the issue, or is the problem the amount or percent of money a state stands to lose if it does not comply with the conditions? (Dole indicated the latter, as South Dakota was not coerced because it would lose only 5% of its federal highway funding if it refused to comply with the minimum drinking age that the federal government sought to impose.) Can coercion only apply to an existing conditional spending program that a state could not leave because it has become dependent on the program? Or is there some federal program that would offer so much money that no state could turn it down, even at the outset, such that the new program would be coercive? If it is the former, then clear statement rules also need to be revisited, because they seem to assume some kind of regular restatement of the rules of the program to which a state actively agrees. That simply does not occur in a long-standing program like Medicaid, making me think that clear statement rules are almost meaningless in that context. Additionally, states inherently relinquish some sovereignty when they agree to the terms of a cooperative federalism program, highlighting tensions between dual sovereignty and cooperative federalism.
So, what is the upshot for the Medicaid expansion? [more after the jump]
December 9, 2011 at 1:26 pm
Tags: Constitutional Law, Current Events, federalism, health care
Posted in: Constitutional Law, Health Law, Supreme Court
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The Court, Spending, Federalism, Medicaid, and Other Minor Stuff
posted by Nicole Huberfeld
My thanks to Angel, Dan, and the rest of the regulars at CoOp for the invitation and the introduction. I am delighted to be guest blogging, especially at a time when my fields of interest are overflowing with developments. Everyone has been talking about the Commerce Clause questions raised by the minimum coverage provision of the Patient Protection and Affordable Care Act (“PPACA”). I too have been avidly following this litigation, but because I study (among other things) Medicaid as a vehicle for constitutional change – and that phenomenon is happening right now. The Court will decide two high-profile Medicaid cases this term, each of which has the potential to facilitate major movement in structural constitutional law. Oral arguments were heard in the first case, Douglas v. Independent Living Center of Southern California, on October 3d. The second case, Florida v. HHS, will be heard in the spring.
I try not to assume that folks know a lot about federal healthcare programs with their layer cakes of complexity; to wit, a justice said during oral argument, “Suppose there were a provision in the Medicaid or Medicare Act… I get the two of them confused.” (Ahem.) So, I will begin with a bit of background that I hope will help to illuminate the two cases before the Court. Later posts will explore Douglas and Florida v. HHS and their implications for conditional spending jurisprudence, federalism, and Medicaid itself more directly.
Medicaid is a forty-six year old spending program that provides federal money to the states in exchange for states agreeing to provide particular medical services to the “deserving poor.” Medicaid has been described as a classic example of cooperative federalism, but the program is structured this way for historic rather than philosophical reasons (which I detail in Federalizing Medicaid). States were responsible for welfare programs since our founding, and when they could no longer afford to provide welfare medicine, they asked the federal government for money to help care for the deserving poor. The federal government responded with almost conditionless grants to the states through the Social Security Act of 1935. Over time, the states asked for more money, and the federal government provided it, but each amendment to the SSA included more and broader rules for the federal funds to ensure they were being used properly. Fast forward to 1965 and the passage of Medicare, with Medicaid in tow. While Medicare was grounded philosophically in social insurance (but only for people 65 and older), Medicaid continued the old patterns. Indeed, the elderly convinced Congress not to allow Medicare to be a joint program between the federal government and the states. So, Medicaid is a cooperative federalism partnership between the federal government and the states, but not because it was thoughtfully constructed that way. And, this partnership seems to have fostered more disagreement than cooperation between the federal government and the states.
Why does this matter? A number of reasons. PPACA’s expansion of Medicaid is a major philosophical change in the program because it eliminates the idea of the deserving poor for the first time in our history. But, the tensions between the federal government and the states are very much alive and on display before the Court. Douglas involves a challenge to California’s Medicaid reimbursement rate reductions under the Supremacy Clause, and it raises questions regarding the nature of spending legislation, access to federal courts, private rights of action against the states, and Medicaid’s very aspirations. Florida v. HHS challenges the institutional structure of Medicaid (the federal-state partnership) and thus raises major spending questions and federalism questions, including the ever-elusive idea of “coercion.” The kicker: it has been clear for some time that certain justices were eager to decide these questions.
December 1, 2011 at 12:06 pm
Tags: Constitutional Law, Current Events, health care
Posted in: Constitutional Law, Current Events, Health Law, Supreme Court
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Getting Mental Health Coverage Wrong
posted by John Jacobi
Thanks to Frank for inviting me to review Barak Richman, Daniel Grossman, and Frank Sloan’s chapter, Fragmentation in Mental Health Benefits and Services, in Our Fragmented Health Care System: Causes and Solutions (Einer Elhauge, ed. 2010). The book is important and provocative. The chapter on the fragmentation of mental health care couldn’t address a more timely issue.
People with serious mental illness, more than most other patients, struggle with health system fragmentation. As the Institute of Medicine described it,
Mental and substance-use (M/SU) problems and illnesses seldom occur in isolation. They frequently accompany each other, as well as a substantial number of general medical illnesses such as heart disease, cancers, diabetes, and neurological illnesses. *** Improving the quality of M/SU health care—and general health care—depends upon the effective collaboration of all mental, substance-use, general health care, and other human service providers in coordinating the care of their patients. *** However, these diverse providers often fail to detect and treat (or refer to other providers to treat) these co-occurring problems and also fail to collaborate in the care of these multiple health conditions—placing their patients’ health and recovery in jeopardy.
By some estimates, formerly institutionalized people with serious mental illness experience about 25 fewer years of life, mostly due to the effects of treatable physical illnesses such as cardiovascular, pulmonary and infectious diseases. The effects of this health system fragmentation are experienced notwithstanding parity legislation, and they are felt also by people in the community with less serious mental illness, often because their primary care providers can’t find mental health providers to whom they can refer.
In Fragmentation in Mental Health Benefits and Services, the authors approach mental health system fragmentation by telling a story of the relationship between health insurance structure and income redistribution. The authors address the interrelationship between insurance “carve-outs” for mental health care and the growth of mental health parity laws. They assert that the carve out of behavioral health coverage from medical insurance provokes states to pass mental health parity laws. According to the authors, these parity laws fail to help their “intended” beneficiaries, and instead serve to redistribute resources away from low income and non-White employees.
To make their case, they mine a database of claims data for privately insured North Carolina patients. These claims data allow them to track employees’ (and, presumably, their dependents’) use of mental health services. Along the way, they raise several important issues. For example, they suggest that care provided by mental health providers may not be particularly efficacious. (299) Few would disagree that in most areas of health care – including mental health care – comparative effectiveness research is essential. In addition, they suggest that access to and benefit from covered services varies by income and race. (298-99) It is undoubtedly true that there are class-based and race-based disparities in access to health care; this is so much discussed, in fact, that it somewhat puzzling that the authors would characterize as a “regularly overlooked question” the fact that “equal insurance and access does not translate into equitable consumption.” (279)
On some points, the authors seem to go a bit beyond their data. First, the authors assert (without citation) that mental health parity is “often” pursued “to benefit low-income and traditionally vulnerable populations.” (284) Many advocates (myself included) have argued for parity as a civil rights matter: as people with physical illness have access to insurance coverage, so should people with mental illness. Certainly, insurance coverage is most valuable for those without the means to pay for care out of pocket, but that is as true for cardiac care as for mental health care. From this perspective, parity legislation seems no more a redistributive move than any other form of health insurance.
October 13, 2010 at 10:42 am
Tags: Book Reviews, health care
Posted in: Book Reviews, Health Law, Law and Psychology, Symposium (Health Care Fragmentation)
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Return of the Necessary and Proper Clause (Just in Time for Health Care)
posted by Robert Schapiro
The Congress shall have Power . . . To make all Laws which shall be necessary and proper 
for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. U.S. Const. Art. I, § 8.
The big news last week concerning the fate of the federal health care legislation was not the entrance of new plaintiffs into the litigation challenging the statute or the government’s filing its opposition brief in the suit brought by Virginia. The big news was United States v. Comstock and the continuing resurgence of the Necessary and Proper Clause of the Constitution (quoted above).
The constitutional challenges focus on the so-called individual mandate, taking effect in 2014, which will require that most people either own health insurance or pay a penalty. Legally, the arguments against the legislation lack merit. As I have argued elsewhere, under contemporary Commerce Clause doctrine, Congress can impose the individual mandate as part of its comprehensive regulation of the interstate market in health insurance. Further, the provision is structured as a tax on those who fail to purchase insurance, thus falling within Congress’s even broader taxing authority.
Rhetorically, however, the opponents’ arguments may have some appeal. How, the critics insist, can Congress’s constitutional authority to regulate interstate commerce extend to regulating the non-commercial activity of doing nothing (i.e., not buying insurance)? Doing nothing is not commerce, the law’s opponents proclaim. Can you make a federal case out of taking a nap?
The answer to this rhetoric comes from the Court’s great rhetorician, Justice Antonin Scalia.
May 27, 2010 at 3:43 pm
Tags: Constitutional Law, federalism, health care, Supreme Court
Posted in: Constitutional Law, Current Events, Health Law, Legal Theory, Politics, Supreme Court, Uncategorized
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What would LBJ do?
posted by Spencer Waller
I am almost done with Robert Caro’s Master of the Senate, his magnificent biography of the years Lyndon Baines Johnson served in the United States Senate. This is the third volume of his-yet unfinished biography of the life of LBJ. This work in progress is now approximately 2500 pages long and has not even covered the years where LBJ was Vice-President and President.
All three volumes focus on Johnson’s ambition for power and leadership. Master of the Senate begins with the history of the Senate and its role in our Constitutional structure as the place where dramatic political and social change goes to die – by design. Even after Senators were directly elected, the longer terms, the rules of the Senate, the role of seniority, committee chairmanships, the ease of filibuster, and the difficulty of cloture have made the Senate a unique institution.
Caro focuses mostly on two developments in the years between 1948 and 1960 before Johnson was elected Vice-President. First, was his meteoric rise as the first (and possibly last) Senate Majority Leader to wield true power. Second, was his burning ambition to be the first Southerner to be elected President since the Civil War.
These two developments combined in Johnson’ epic struggle to pass the Civil Rights of Act of 1957. Out of burning ambition, but also a complicated attitude toward race that was different than most Southern Senators, Johnson wanted, needed, some, any, civil rights legislation to lay the foundation for a run for the White House in 1960. Passing such legislation meant a weak enough bill so the Southern Bloc (his bloc as Caro makes clear in detail) wouldn’t filibuster, and yet enough of a bill that the Republicans, Northern liberals, and Western Democrats could support. To ensure passage, and no filibuster, Johnson had to stitch together a coalition that had never been successfully created on civil rights from the Jim Crow era on.
Caro lays out the cajoling, wheeling, dealing, strong arming, and compromising in the fight for the civil rights bill as well as the complicated linkages between the civil rights bill and other legislation to obtain LBJ’s winning coalition. Among other things, Johnson brokered a deal between Western Democrats who wanted public power and conservative Southern Democrats who wanted the most watered down civil rights bill possible. The Southerners voted for a public power bill they had previously opposed, but did not filibuster the emerging civil rights bills once key changes were made. The Southerners opposed the bill on the floor and voted against it, but would never used the one weapon which could have killed it entirely. The Western Democrats got their public power (at least in the Senate) and supported watering down the civil rights bill which would not hurt them politically back home in that era. Northern Democrats eventually were reconciled to the fact that some bill was better than nothing and Southern Democrats were reconciled to the fact that some bill was inevitable.
Does this remind you of anything currently going on in the Senate? We are seeing the same type of struggle now play out in the Senate over health care reform. Only a fraction of the sausage making is taking place in public, but the same issues of power, leadership, and strategy seems to be unfolding. Some bill, any bill, will probably ultimately pass. Obviously Harry Reid is no LBJ, but the demographics of the House, Senate, and White House are different enough that something is likely to emerge.
But the issues of power, leadership, and strategy remain. Is some bill better than no bill? Is this the first step to more comprehensive reform down the road? Is the watering down of the public option to build coalitions within the Democratic Party, and perhaps a couple of Republicans, leadership, weakness, or just rent seeking? While we will never know, what would LBJ have done on health care, and will we ever see the likes of him as a legislative leader again?
***
Thanks to Danielle, Dan, and the rest of Concurring Opinions for the chance to blog for the month of October. I look forward to the new group of guest commentators for November including my Loyola-Chicago colleague Mike Zimmer.
October 31, 2009 at 6:58 pm
Tags: Civil Rights, filibuster, Harry Reid, health care, LBJ, Lyndon Johnson, Majority Leader, Master of the Senate, Robert Caro, Senate
Posted in: Civil Rights, Current Events, Health Law, History of Law, Politics, Race
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