Law Commons^™

Federalizing Medicaid, Nicole Huberfeld

Faculty Scholarship

Medicaid fosters constant tension between the federal government and the states, and that friction has been exacerbated by its expansion in the Patient Protection and Affordable Care Act of 2010 (PPACA). Medicaid was an under-theorized and underfunded continuation of existing programs that retained two key aspects of welfare medicine as it developed: bias toward limiting government assistance to the “deserving poor,” and delivery of care through the states that resulted in a strong sense of states’ rights. These ideas regarding the deserving poor and federalism have remained constants in the program over the last forty-six years, but PPACA changes one …

The Benefits Of Opt-In Federalism, Brendan S. Maher

Faculty Scholarship

The Affordable Care Act (“ACA”) is a controversial and historic statute that mandates people make insurance bargains. Unacknowledged is an innovative mechanism ACA uses to select the law that governs those bargains: opt-in federalism.

Opt-in federalism – in which individuals choose between federal and state rules – is a promising theoretical means to make and choose law. This Article explains why, and concludes that the appeal of opt-in federalism is independent of ACA. Whatever the statute’s constitutional fate, future policymakers should consider opt-in federalist approaches to answer fundamental but exceedingly difficult questions of health and retirement law.

Forum, Federalism, And Free Markets: An Empirical Study Of Judicial Behavior Under The Dormant Commerce Clause Doctrine, Mehmet K. Konar-Steenberg, Anne F. Peterson

Faculty Scholarship

This study examines judicial behavior under the dormant Commerce Clause doctrine by drawing on an original database of 459 state and Federal appellate cases decided between 1970 and 2009. The authors use logit regression to show that state judges are more likely to uphold state and local laws against dormant Commerce Clause attack than their Federal judicial counterparts, a result that is consistent with the interstate rivalry issues animating the doctrine. The study also finds that Republican-dominated judicial panels at the state level are more likely to side with tax challengers invoking the dormant Commerce Clause doctrine than are Democratic …

Four Constitutional Limits That The Minimum Coverage Provision Respects, Neil S. Siegel

Faculty Scholarship

Opponents of the minimum coverage provision in the Affordable Care Act charge that if Congress can require most people to obtain health insurance or pay a certain amount of money, then Congress can impose whatever mandates it wishes—or, at least, whatever purchase mandates it wishes. This Essay refutes that claim by identifying four limits on the Commerce Clause that the minimum coverage provision honors. Congress may not use its commerce power: (1) to regulate noneconomic subject matter; (2) to impose a regulation that violates constitutional rights, including the right to bodily integrity; (3) to regulate at all, including by imposing …

What Happened In Iowa?, David Pozen

Faculty Scholarship

Reply to Nicole Mansker & Neal Devins, Do Judicial Elections Facilitate Popular Constitutionalism; Can They?, 111 Colum. L. Rev. Sidebar 27 (2011).

November 2, 2010 is the latest milestone in the evolution of state judicial elections from sleepy, sterile affairs into meaningful political contests. Following an aggressive ouster campaign, voters in Iowa removed three supreme court justices, including the chief justice, who had joined an opinion finding a right to same-sex marriage under the state constitution. Supporters of the campaign rallied around the mantra, “It’s we the people, not we the courts.” Voter turnout surged to unprecedented levels; the national …