Excerpted From: Nicole Huberfeld, High Stakes, Bad Odds: Health Laws and the Revived Federalism Revolution, 57 U.C. Davis Law Review 977 (December, 2023) (337 Footnotes) (Full Document)

Nicole HuberfeldThe Supreme Court's 2021 term produced a remarkable number and range of blockbuster decisions, many of which exposed an underlying federalism agenda that popped up in health law, reproductive rights, administrative law, and other public health-related domains, weaving through cases where federalism was not obviously an issue, and appearing in “shadow docket” as well as regular decisions. laws have been front and center at the Court many times before now. The Affordable Care Act (“ACA”) has been litigated so much throughout its first decade, it is effectively a cottage industry. While health law has been a vehicle for constitutional change in the past, the “New Roberts Court” is raising the stakes and creating bad odds for older health laws, most of which rely on states to achieve national goals.

The Court also is doubling down on interpretive methods that limit government power, often using formalist tools like clear statement rules that demand specificity and offer little or no deference to lawmakers or regulators. These rules have constitutional dimensions, including separation of powers and federalism; as such, these structural rules have substantive implications. For example, in January 2022, during a post-holiday spike in COVID-19 infections and deaths, the Court blocked vaccine-or-test requirements for large employers--even though some governors and legislatures refused to implement such measures and obstructed local officials' disease containment efforts because the Court viewed the Federal Occupational Safety and Health Administration (“OSHA”) as lacking authority. The Court questioned whether OSHA has public health power at all while prioritizing state power to regulate health, and in so doing created a regulatory vacuum in pandemic containment policies. This was just one of many decisions demonstrating a turn toward formal line-drawing in governmental authority that had the effect of increasing states' responsibility for protecting health.

A pattern is emerging in which the Court is recentering a formal, separate-spheres vision of federalism that favors states' rights, regardless of state capacity to wield that power or evidence that they do not. Another piece of this pattern is the majority's skeptical approach toward administrative authority, which birthed the novel major questions doctrine that is poised to have deregulatory impact across public laws of all stripes. Chief among them are federal health laws, which often rely on federalism governance structures and have been the means to achieve these ends in many instances.

The stakes could not be higher. Law is a determinant of health, which means the structure and the substance of laws directly and indirectly control individual medical care, such as payment for, access to, and quality of care, as well as public health efforts in prevention, surveillance, and emergency and disaster responses. Federal health laws have tended to flatten state heterogeneity in health policies to create a national baseline, while still relying on state uptake of federal funds to implement national policy goals. Indeed, Congress relies on federalism-- which divides power and responsibility for designing and implementing policies across federal, state, and local governments--as the default governance structure for most social programs. Congress expects states to work within these statutory structures because historically they have done so, which means many older statutes contain no alternative approach for implementation. This reliance on federalism in laws that contain no fallback, in the face of the Court's use of health laws for doctrinal transformation, presents at least four challenges.

First, laws enacted before the Supreme Court's “Federalism Revolution” in the 1990s, like the amendments to the Social Security Act (“SSA”) that are the Medicaid Act, most titles of the Public Health Service Act, the National Emergencies Act, and related social programs like the Supplemental Nutrition Assistance Program (“SNAP”), provide no federal fallback. As amendments to the SSA, such laws reflect New Deal Era thinking that states need money and therefore will avail themselves of federal laws implementing national baselines in exchange for stable, countercyclical funding. Yet, when states refuse to participate in federal policies, federal programs become unimplementable, giving states what is effectively veto power over federal laws. Recent legislation is more likely to be drafted with federal fallbacks, often requiring a federal agency to act when states do not; for example, when states refused to create health insurance exchanges, the ACA required the federal government to create one. On the other hand, the ACA's Medicaid eligibility expansion remains incomplete because the program never has had a fallback like the health insurance exchange, and eleven states are still vetoing expansion as of this writing.

Second, the heated politics of the COVID-19 pandemic displayed state leaders' prioritization of party over partnering and technocratic management, undermining federal laws designed to reach across state borders in a national emergency, and demonstrating the dangers of states' veto of federal law. Federal money and guidelines were offered to boost state capacity to manage the pandemic through existing federalism-based social programs, but some states did not participate as they have done in the past. Rather, they rejected federal aid, like Florida's governor refusing relief money to feed schoolchildren in the summer of 2021. The ACA's Medicaid expansion politics previewed this phenomenon, and the Court's first ACA decision probably encouraged a take-no-prisoners political calculus. However, COVID-19 seemed to prompt greater intensity in state officials' resistance, elevating rejection over negotiation. Increased federal-state and state- local conflict may have been fed by presidential leadership, but these seeds were planted long before the pandemic.

Further, some states could not use federal relief money due to prior policy choices, which points to the third challenge: lack of governance capacity. Theorists tend to overlook weaknesses in federalism being central to the success or failure of U.S. social programs. Experts traditionally conceive federalism's values as state autonomy, political accountability, policy experimentation, and variation. State capacity to exercise the power allocated by federalism is typically assumed to exist. The pandemic crystalized how the governance capacity assumption is out of step with evidence of state lawmakers' choices being driven by national politics, interest organizations, and other factors, rather than data or a desire to conduct valid experiments. Federalism's layered governance can hide the effects of such policymaking, as it is harder for voters to discern responsibility for decisions, which is amplified by focus on presidential and national party politics rather than state and local elections. Layers of power require more official action at each level of government, which can entrench a law when implementation works, but also foster room for error while obscuring accountability for failures. It is easier to kick the can down the road when voters cannot discern which actor is answerable for undesirable policies or outcomes. For example, persistent defunding of public health departments and programs deeply affected management of the COVID-19 pandemic. Nevertheless, the Court is returning such issues to states without evaluating whether states will take the reins or what it means for public health when they do.

Fourth, the inherent variability of federalism impacts health inequitably, especially for racial and ethnic minorities and other vulnerable populations such as rural communities. deepened during the COVID-19 pandemic response, but they are a long-term, well-documented problem. Pushing policymaking down to the states will continue to expand healthinequities. Medicaid expansion provides an example, but another decision from the blockbuster October 2021 term also helps: returning regulation of abortion to the states after Dobbs v. Jackson Women's Health. The Dobbs decision increased horizontal conflict between states and making access to many forms of health care more difficult, variable, and inequitable for people of reproductive age. is affecting not just the spotlighted issue of abortion, but also broader issues like where residents, physicians, and other health care providers are willing to practice medicine; increasing fetal and maternal mortality disparities, especially in states that limited access to abortion even before Dobbs; and growing conflicts between providers, patients, and restrictive states' laws. When states have more control over health laws, inequitable impacts are a predictable outcome--some states will enact laws in the spirit of salus populi, but many have a history of the opposite approach.

This article rings an alarm bell. The renewed Federalism Revolution, channeled through decades-old health laws that were meant to decrease state variation yet rely on federalism without fallbacks for implementation, in combination with the state veto and questionable governance capacity, places many federal laws on a precipice. This danger did not come about because of political or policy debate, but rather because the Court is causing volatility that is likely to make reliance on old federal health laws difficult in the near future. Part I studies the New Roberts Court's decisions elevating formalism through interpretive tools such as clear statement rules, which affect the stability of health laws by imposing new standards on old laws and foregrounding dual sovereignty while disregarding how federal/state partnerships work. This Part also introduces problems posed by theoretical assumptions about federalism, which rely on values that are rarely evaluated in terms of their outcomes. The traditional values of autonomy and political accountability inform what I call “governance capacity,” which impacts the leadership and expertise necessary for managing the responsibilities assigned by federalism. I also claim the values of state experimentation and policy variation should be informed by principles for valid experimental design. Part II makes the challenges of the Court elevating formal federalism more concrete with two examples of crucial health policies that lack federal fallbacks: Medicaid expansion and the public health emergency for COVID-19. These examples illustrate how state vetoes increase variability and stymie implementation of federal laws. Part III considers three possible approaches to managing the possible erosion of health laws.

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The Court's clear statement rules on steroids have the potential to affect the interpretation, scope, and application of federal laws that fund and guide the public's health. Building on fifty to eighty year old laws suddenly seems to be a questionable approach, even though incrementalism was a politically practical approach in the past. This Article revealed patterns in the renewed Federalism Revolution that create high stakes for not just federal health laws but public laws of all stripes. Older health laws with no fallbacks, in combination with the Court's newfound formalism, and the rise of state vetoes, place many health laws on a precipice of dilution. Yet, the people reliant on social programs often are hindered from engagement in local democracy.

Given the practice of building on what came before, Congress should prioritize federal fallbacks. In addition, deeper evaluation of what health care federalism actually does should occur. The Institute of Medicine defines public health as “fulfilling society's interest in assuring conditions in which people can be healthy.” policy disputes are being pushed more and more to the states. Because law is a determinant of health, for the sake of salus populi, we should know what this devolution really means.

Nicole Huberfeld. Edward R. Utley Professor of Health Law & Professor of Law, Boston University School of Law & School of Public Health.