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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