High Stakes, Bad Odds: Health Laws and the Revived Federalism Revolution

Abstract

The Supreme Court’s most recent term produced a number of blockbuster decisions, nearly hiding a federalism agenda that surfaced in health law, reproductive rights, administrative law, and other domains, weaving through cases where federalism was not obviously at issue, and appearing in “shadow docket” as well as regular decisions. Health laws have been front and center at the Court many times before now, and health care has been a vehicle for constitutional change in the past, but the New Roberts Court is raising the stakes for older health laws, most of which rely on states to achieve national goals. This article shows that the Court has increased formal interpretive methods that limit governmental power, like clear statement rules and the major questions doctrine, which are likely to have deregulatory impact across public laws. I claim a pattern is developing in which the New Roberts Court is centering a formal, separate-spheres vision of federalism that favors states’ rights, regardless of states’ capacity to wield that power or evidence that they do not.

Law is a determinant of health, controlling access to individual medical care and public health. For most social programs, Congress relies on federalism, which divides power and responsibility for implementing policies across federal, state, and local governments. However, laws enacted before the Court’s “Federalism Revolution” in the 1990s, like the Medicaid Act, have no federal alternative (or “fallback”) if states refuse to participate. State capacity to exercise power allocated by federalism has been assumed by judges and theorists alike. Yet, the pandemic crystalized that the governance capacity assumption is out of step with actual practice, and that states can effectively veto federal laws that have no fallback. Additionally, the inherent variability federalism invites impacts health inequitably, especially for racial and ethnic minorities and other vulnerable populations like rural communities.

This article spotlights the Court’s recent decisions using health law as a vehicle for constitutional change and probes theoretical assumptions about federalism’s values, illustrating the risks of these new patterns through two key examples, Medicaid expansion and the public health emergency for COVID-19. The article then identifies legal and ethical principles courts, administrative agencies, states, and policymakers could employ given that the Court is not likely to change course soon. Congress has authority to create new federal laws, or to amend laws, either of which would ironically increase federal power in states that will not partner. I also argue the traditional federalism values could and should be evaluated concretely using existing principles in law and bioethics as well as data from other disciplines. Many federal health laws are in danger of instability and dilution, but it may be possible to avert bad outcomes.

Keywords: Supreme Court; health law; federalism; ACA; health reform; Medicaid; public health; COVID-19; administrative law