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Thursday, December 08, 2011

New Article in the New England Journal of Medicine (with Jim Blumstein) on the Constitutionality of Health Care Reform

Today, the New England Journal of Medicine is a publishing a short piece I wrote with  Blumstein (of Vanderbilt Law) on the consttutionality of the Affordable Care Act. The article deals not with the more familiar question of the individual mandate, but the separate question of whether Congress' Expanded Medicaid requirements, imposed on the states, runs afoul of the spending clause. This "sleeper issue" has gotten a lot less press, though the Supreme Court explicitly included the question in the cert grant and has allocated a full hour of argument time to the issue, which is some indication it is taking the matter seriously.

Posted by Glenn Cohen on December 8, 2011 at 04:56 AM in Constitutional thoughts, Current Affairs | Permalink


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Georgetown's experimental section has had basically this exact curriculum for several decades. The students who take it really love it, but those who don't are very skeptical. Which seems to be the reaction Harvard is getting now.

Posted by: write my paper | Dec 9, 2011 5:12:56 AM

Thanks Jessie and Ian.

Because NEJM limits us to about 1200 words and it has to be understandable to a non-lawyer audience, we didn't get too deep into the nuances so I am happy to be able to extend the discussion here. I should also note that we tried as much as possible to just set out the arguments in the piece rather than be very evaluative, and that Jim and I have some differing views on the evaluation dimension (I think it is fair to say I am more skeptical of the Plaintiffs' argument), and if you want to see us each speaking more in our own voice on the merits, you can check out this video http://www.law.harvard.edu/media/2011/10/27_pf.mov of the event we co-ran between Harvard Law School's Petrie-Flom Center and Vanderbilt Law School before the cert grant.

On to substance. Jesse I too initially thought that the Medicaid 2.0 argument defeated rather than supported the Plaintiffs' argument. However, after thinking about it some more and some prodding by Jim, I've come to think of this as a contestable question of whether the greater includes the lesser. Moreover, it does seem to me that Medicaid 2.0 versus what Congress actually did here has significantly different implications in terms of the way the public views the matter, whether Congress was likely to have done it (to put it crudely whether the politicians would have wanted to spend the additional political capital). In a way this is similar to the argument that has been made why we should not read the ACA as authorized by the taxing power: by explicitly refusing to put it under that taxing power, the President/Congress avoided internalizing the political costs of calling it a tax, and we ought not to give them that free pass. I am still not sure I am fully convinced, but it does seem to me that there is a way that one could imagine a rational doctrine that required politicians to come out and say "this is Medicaid 2.0" rather than change the program dramatically but pretend it is the same program.

Ian, I think there are two nice things about your question (1) I think it is hard to read the hints from South Carlonia v. Dole about the possibility of a coercion problem to answer this denominator problem; (2) as we suggest towards the end of the NEJM piece, it shows just how uncomfortable a role the plaintiffs are asking the Court to take on, determining what is coercive and what is not. Now all that said, I really think that the practical reality is that no governor could walk away from federal medicaid money altogether and hope to keep his job in the next election. It is not clear that *this* is the relevant test (almost nothing is clear from the small discussion in the S. Ct. case law), but it certainly does seem like good facts on which to bring a spending clause coercion challenge (much better than Dole itself).

Had you asked me before the cert grant if I thought this issue was going somewhere, I would have suggested not. While I think it foolish to read too many cert tea leaves, it does seem to me that with a full hour of argument the Court is at least taking seriously these issues in a way I would never have predicted...

Posted by: I. Glenn Cohen | Dec 8, 2011 10:19:11 PM

Thanks, Glenn. That is a very interesting and informative piece, and helps me (at least) better understand why the Court is taking the spending power argument seriously.

I'm still not quite clear, though, on which numbers are actually the relevant ones for the "coerciveness" claim--is it the 10% --90% breakdown on the costs of the fully operational program, or is it that fact that states stand to lose 100% of their federal Medicaid funds if they opt out? I would think it is that latter, and that the doctrinal question revolves around how reliant a particular state is on federal funds when it serves its citizens health care needs.

If, for example, the threatened withdrawal of federal funds would represent a 50% cutback in a state's overall health care program, that might be coercive (an offer they can't refuse), but if federal funding only made up 5% of the state's health program, they could opt out fairly painlessly. The coercion question, then, is whether a state can realistically forego federal money and provide health care (as an essential service) on its own, or if declining federal money would effectively render the state unable to provide such a service. I guess I'm still unclear where the 10%-90% fits in...

Posted by: Ian Bartrum | Dec 8, 2011 4:39:25 PM

Glenn - thanks - interesting and very helpful piece. I'm glad you wrote it - I also found it surprising that the Court granted an hour of argument on this issue. One question, though, regarding your argument that it is constitutionally problematic for Congress to change the rules of Medicaid midstream: Doesn't your own recognition that Congress could just scrap Medicaid tomorrow, and start all over, with no constitutional consequences, undermine this coerciveness argument? And contrary to the argument that private parties usually can't reserve rights to unilaterally change a contract -- don't credit card companies do this all the time, subject only to the cardholder's right to withdraw?

Posted by: Jessie Hill | Dec 8, 2011 11:50:04 AM

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