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Published online by Cambridge University Press: 06 January 2021
Many thanks to AJLM for hosting this timely symposium. Thanks always DT and SRHT.
1 Gregory v. Ashcroft, 501 U.S. 452, 458 (1991) (“Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in anyone branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.”); see also Bond v. United States, 564 U.S. 211 (2011). Justice Kennedy wrote:
The federal system rests on what might at first seem a counterintuitive insight, that “freedom is enhanced by the creation of two governments, not one.” Alden v. Maine, 527 U. S. 706, 758 (1999). The Framers concluded that allocation of powers between the National Government and the States enhances freedom, first by protecting the integrity of the governments themselves, and second by protecting the people, from whom all governmental powers are derived.
Id.
2 See, e.g., Corwin, Edward S., The Passing of Dual Federalism, 36 Va. L. Rev. 1-24, 1 (1950)CrossRefGoogle Scholar; Gerken, Heather K., Federalism 3.0, 105 Calif. L. Rev. 1695 (2017)Google Scholar (describing three phases of federalism in U.S. history).
3 For a detailed exploration of the federalism in the implementation of the ACA and coining of the phrase dynamic federalism, see generally Gluck, Abbe R. & Huberfeld, Nicole, What Is Federalism in Healthcare For?, 70 Stan. L. Rev. 1689–1803 (2018)Google Scholar. I rely on our findings for many factual assertions including health care reform history and ACA implementation specifics in this essay. See id. at Parts II, III, IV & V.
4 Huberfeld, Nicole, The Universality of Medicaid at Fifty, 15 Yale J. Health Pol'y, L. & Ethics 67-88, 69 (2015)Google ScholarPubMed; Huberfeld, Nicole & Roberts, Jessica L., Medicaid Expansion as Completion of the Great Society, 2014 Ill. L. Rev. Slip Opinions 1-8, 3 (2014)Google Scholar.
5 Gluck, Abbe R. & Huberfeld, Nicole, The New Health Care Federalism on the Ground, 15 Ind. Health L. Rev. 1 (2018)CrossRefGoogle Scholar.
6 See generally Nat'l Fed'n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012).
7 The New Health Care Federalism on the Ground, supra note 5.
8 42 U.S.C. § 1315 provides:
In the case of any experimental, pilot, or demonstration project which, in the judgment of the Secretary, is likely to assist in promoting the objectives of subchapter … XIX, … in a State … (1) the Secretary may waive compliance with any of the requirements of section … 1396a of this title, as the case may be, to the extent and for the period he finds necessary to enable such State or States to carry out such project.
42 U.S.C. § 1396-1 states that the “purpose” of Medicaid is to “furnish medical assistance on behalf of families with dependent children and of aged, blind, or disabled individuals, whose income and resources are insufficient to meet the costs of necessary medical services.” The people eligible for Medicaid have increased since 1965, most recently through the ACA's expansion to an “eighth category” of eligibility. 42 U.S.C. § 1396a(a)(8) & (10).
9 A Snapshot of State Proposals to Implement Medicaid Work Requirements Nationwide, National Academy for State Health Policy (March 20, 2019), https://nashp.org/state-proposals-for-medicaid-work-and-community-engagement-requirements/ (last visited March 25, 2019) [https://perma.cc/K53R-38HJ]. Three states' waivers have been challenged in federal court so far.
10 Stewart v. Azar II, Civil Action No. 18-152 (JEB) (D.C. Dist. Ct., Mar. 27, 2019), at https://www.courtlistener.com/recap/gov.uscourts.dcd.192935/gov.uscourts.dcd.192935.132.0_2.pdf; Gresham v. Azar, Civil Action No. 18-1900 (JEB) (D.C. Dist. Ct., Mar. 27, 2019), at https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2018cv1900-58.
11 Nat'l Fed'n of Indep. Bus. v. Sebelius, 567 U.S. 519, 678 (2012) (Scalia, Kennedy, Thomas, Alito, JJ., dissenting).
12 New York v. United States, 505 U.S. 144, 166-69 (1992).
13 Id. at 168-9. The majority wrote: “where the Federal Government compels States to regulate, the accountability of both state and federal officials is diminished. …it may be state officials who will bear the brunt of public disapproval, while the federal officials who devised the regulatory program may remain insulated from the electoral ramifications of their decision. Accountability is thus diminished when, due to federal coercion, elected state officials cannot regulate in accordance with the views of the local electorate in matters not pre-empted by federal regulation.” Id.
14 See generally The New Health Care Federalism on the Ground, supra note 5 (detailing interviews with key stakeholders in ACA implementation, who consistently described this process).
15 What Is Federalism in Healthcare For?, supra note 3, at 1700, 1767, 1771, 1780.
16 Ashley Kirzinger, Elise Sugarman, & Mollyann Brodie, Kaiser Health Tracking Poll: November 2016, Kaiser Family Foundation (Dec. 1, 2016), https://www.kff.org/health-reform/poll-finding/kaiser-health-tracking-poll-november-2016/ [https://perma.cc/A7AL-S9DB].
17 Centers for Medicare and Medicaid Services, SMD: 18-002 (Jan. 11, 2018), https://www.medicaid.gov/federal-policy-guidance/downloads/smd18002.pdf.
18 For example, Arkansas was the first state to implement work requirements and more than 18,000 were disenrolled by the end of 2018. See Robin Rudowitz, MaryBeth Musumeci, & Cornelia Hall, February State Data for Medicaid Work Requirements in Arkansas, Kaiser Fam. Foundation (Mar. 25, 2019), https://www.kff.org/medicaid/issue-brief/state-data-for-medicaid-work-requirements-in-arkansas/ [https://perma.cc/G6WT-J6XW].
19 Robert Pear, Trump Officials Broaden Attack on Health Law, Arguing Courts Should Reject All of It, N.Y. Times, Mar. 25, 2019, https://www.nytimes.com/2019/03/25/us/politics/obamacare-unconstitutional-trump-aca.html?action=click&module=RelatedCoverage&pgtype=Article®ion=Footer [https://perma.cc/87PXMDNZ].
20 See, e.g., Kyle Dropp & Brendan Nyhan, One-Third Don't Know Obamacare and Affordable Care Act Are the Same, N.Y. Times, Feb. 7, 2017, https://www.nytimes.com/2017/02/07/upshot/one-third-dont-know-obamacare-and-affordable-care-act-are-the-same.html?_r=1[https://perma.cc/AN8X-9TUC].
21 Montana's renewal of Medicaid expansion with tobacco taxes was defeated by outside tobacco money.
22 What Is Federalism in Healthcare For?, supra note 3, at 1703 n. 39.
23 Stewart v. Azar II, Civil Action No. 18-152 (JEB) at 2-3, 42-43 (D.C. Dist. Ct., Mar. 27, 2019), at https://www.courtlistener.com/recap/gov.uscourts.dcd.192935/gov.uscourts.dcd.192935.132.0_2.pdf.
24 Haselswerdt, Jake & Michener, Jamila, Disenrolled: Retrenchment and Voting in Health Policy, 44 J. Health Pol. Pol'y & L. 423, 426 (2019)CrossRefGoogle Scholar (summarizing studies that indicate Medicaid and Medicaid expansion increase voting); see also Margot Sanger-Katz, When Medicaid Expands, More People Vote, N.Y. Times, Nov. 8, 2018; Haselwerdt, Jake, Expanding Medicaid, Expanding the Electorate: The Affordable Care Act's Short-Term Impact on Political Participation, 42 J. Health Pol. Pol'y & L. 667 (2017)CrossRefGoogle Scholar.
25 See id. at 443 (concluding that loss of TennCare Medicaid benefits in Tennessee “did not mobilize people to vote. …loss of coverage appears to decrease turnout.”).