Transcript: The Case for National Political (Rather than State or Judicial) Regulation of Healthcare

One place where judges are becoming increasingly involved is in dormant Commerce Clause cases, and it would have been possible to issue the exact same holding in Sorrell by using dormant commerce analysis. To make the exact same challenge (it would have been up to the litigants, but) it would have been possible to present a similar challenge on dormant Commerce Clause grounds and to have said that this creates uneven regulation for pharmaceutical companies that need to craft different marketing approaches for different states according to different rules about what kinds of data they\u27re allowed to use and not allowed to use. And that interferes with interstate commerce from the point of view of the pharmaceutical company. That holding would have been better in my opinion than the First Amendment holding\u27 because it would have allowed Congress to step in and say, Well, we want this approach or that approach to try to regulate health care. So from my perspective the Sorrell opinion is more problematic than a potential ACA opinion despite the fact that I like federal control better than state control. I like political control better than judicial control even more

King, Chevron, and the Age of Textualism

In the King v. Burwell oral arguments, Chief Justice John Roberts—usually one of the more active members of the Court—asked only one substantive question, addressed to the Solicitor General: If you\u27re right about Chevron [deference applying to this case], that would indicate that a subsequent administration could change [your] interpretation? As it turns out, that question was crucial to Roberts\u27s thinking and to the 6-3 opinion he authored, but almost all commentators either undervalued or misunderstood the question\u27s import (myself included). The result of Roberts\u27s actual thinking was an unfortunate outcome for Chevron—and potentially for the rule of law—despite the happy outcome for the Obama Administration

A Closer Look at the Federalization Snowball

While on the academic job market, I presented Federalization Snowballs to several stellar law faculties.1 My argument, in short, was that: (1) federal healthcare spending allows the states to externalize onto the federal government about 40% of the utilization costs associated with their medical malpractice policies (such as the cost of defensive medicine); (2) such an externality systematically distorts a rational state’s incentive to reform medical malpractice; and (3) federalization of medical malpractice is necessary to correct the distortion. In other words, I argued that federalization of healthcare spending through Medicare, Medicaid, and similar programs has snowballed into a need for federalization of medical malpractice. Federalization snowballs. As I presented this argument to faculties around the country, two questions commonly arose that I hadn’t intended to—and hadn’t in fact—explicitly addressed in the Essay. (Having been warned against “theoretical drift,” I limited myself to one application of my theoretical idea, applying the snowball concept only to my primary area of expertise: healthcare law.) The two questions were: Given the ubiquity of federal spending, aren’t federalization snowballs much more common than the Essay suggests? And given the ubiquity of snowballs that must result from the ubiquity of spending, isn’t the Essay’s theoretical idea much bigger and therefore either much more important or much more implausible than the Essay suggests? (The implied conclusion of “much more important” or “much more implausible” varied by questioner; some were highly skeptical, others much more generous.) This companion piece addresses those two questions, further delineating the general theoretical idea of the federalization snowball. The first part clarifies the scope of the snowball, demonstrating that the idea is indeed bigger than medical malpractice but is not (yet) as big as the federal budget. The second part clarifies the legal underpinnings of the snowball, discussing its ties to a constitutional debate that dates back to the framing era; the snowball idea provides an important theoretical clarification for interpreting the Spending Clause

The Supreme Court’s Assault on Litigation: Why (and How) It Could Be Good for Health Law

In recent years, the Supreme Court has narrowed or eliminated private rights of action in many legal regimes, much to the chagrin of the legal academy. That trend, although certainly not limited to health law, has had a significant impact on the field; the Court\u27s decisions have eliminated the private enforcement mechanism for at least three important healthcare regimes: Medicaid, employer-sponsored insurance, and medical devices. In a similar trend outside the courts, state legislatures have capped non-economic and punitive damages for medical malpractice litigation, weakening the tort system\u27s deterrent capacity in those states. This Article suggests that the trend of eliminating private rights of action should be evaluated not as an elimination of legal enforcement (and creation of a regulatory vacuum ) but rather as a shift of regulatory authority from state judicial forums to federal executive forums. The Article then argues that such a shift might be a wise one for healthcare, given the particular market failures that justify the regulatory intervention. In all four stories, federal executive regulators are poised to take over the regulatory job, and federal executive regulators have the capacity to do a better job than courts. The Article therefore urges completion rather than reversal of the reallocation—a consolidation of regulatory authority in the federal executive and a further disarming of state judicial enforcement power

Statutory Realism: The Jurisprudential Ambivalence of Interpretive Theory

In the renaissance of statutory interpretation theory, a division has emerged between new purposivists, who argue that statutes should be interpreted dynamically, and new textualists, who argue that statutes should be interpreted according to their ordinary semantic meanings. Both camps, however, rest their theories on jurisprudentially ambivalent commitments. Purposivists are jurisprudential realists when they make arguments about statutory meaning, but they are jurisprudential formalists in their views of the judicial power to engage in dynamic interpretation. Textualists are the inverse; they are formalistic in their understandings of statutory meaning but realistic in their arguments about judicial power. The relative triumph of textualism has therefore been an importantly incomplete triumph of formalism, and it has left judges and scholars alike in a position of jurisprudential incoherence. This article demonstrates the ambivalence of modern interpretive theory and then offers some initial thoughts on the harms of this ambivalence to the rule-of-law values that both sides are trying to advance

Common Law Constitutionalism, the Constitutional Common Law, and the Validity of the Individual Mandate

The paper proceeds as follows. Part I describes the constitutional common law and its interactions with common-law constitutionalism. Part II uses the fight over the constitutionality of the Patient Protection and Affordable Care Act (ACA) and its so-called individual mandate as a case study to flesh out the core differences between common-law constitutionalism and constitutional common law. Part III argues that a viable justification for a living constitution needs to embrace and defend the courts\u27 essentially political nature, confronting head-on the (skyscraper) originalists\u27 sense that courts should never do politics

The Individual Mandate as Health Care Regulation: What the Obama Administration Should Have Said in NFIB v. Sebelius

There was an argument that the Obama Administration\u27s lawyers could have made—but didn\u27t—in defending Obamacare \u27s individual mandate against constitutional attack. That argument would have highlighted the role of comprehensive health insurance in steering individuals\u27 healthcare savings and consumption decisions. Because consumer-directed healthcare, which reaches its apex when individuals self-insure, suffers from several known market failures and because comprehensive health insurance policies play an unusually aggressive regulatory role in attempting to correct those failures, the individual mandate could be seen as an attempt to eliminate inefficiencies in the healthcare market that arise from individual decisions to self-insure. This argument would done a better job than the Obama Administration\u27s of aligning the individual mandate with existing Commerce Clause and Necessary and Proper Clause precedent, and it would have done a better job of addressing the conservative Justices\u27 primary concerns with upholding the mandate. This Article lays out this forgone defense of the individual mandate

Obamacare and the Competing Conceptions of Insurance

Review of Kenneth S. Abraham\u27s Four Conceptions of Insurance, 161 U. PA. L. REV. 653 (2013)

Beyond Payment and Delivery Reform: The Individual Mandate’s Cost-Control Potential

Obamacare\u27s individual mandate, minimum coverage requirements, elimination of cost-sharing for preventive care, and minimum medical loss ratios work together to decrease patients\u27 decision costs, steering patients to particular choices that Congress deemed most efficient. If those regulations succeed in improving the efficiency of patients\u27 healthcare and insurance choices, then the resulting demand-side forces can help to decrease prices. This brief Essay does not attempt to evaluate the regulations\u27 success; it merely highlights the cost-control implications of Obamcare\u27s demand-side measures, noting that discussions of cost control should not focus exclusively on the statute\u27s supply-side effects