Against the Safety Net

Then-Representative Jack Kemp and President Ronald Reagan originated the “safety net” conception of U.S. health and welfare laws in the late 1970s and early 1980s, defending proposed cuts to New Deal and Great Society programs by asserting that such cuts would not take away the “social safety net of programs” for those with “true need.” Legal scholars have adopted their metaphor widely and uncritically. This Article deconstructs the safety net metaphor and counsels against its use in understanding health and welfare laws. The metaphor is descriptively confusing because it means different things to different audiences. Some understand the safety net as comprising morality-tested subsistence programs (as did Representative Kemp and President Reagan), but others understand it as comprising all subsistence programs (whether reserved for those with “true need” or not); or both subsistence programs and poverty-prevention programs; or even the full panoply of laws that affect in any way the human ecosystem in which people live, die, sometimes get sick, and sometimes get help. Moreover, the vision that the metaphor conjures of laws springing into action to rescue an independent individual should she “fall” contradicts feminist and communitarian conceptions of the subject of regulation. Relatedly, this vision of law as a net reifies laws involved in rescue but not those involved in preventing harm, building resilience, or promoting equality, thereby hiding social and structural determinants of health and inequality and taking sides on difficult prioritization questions raised by acknowledging such determinants. In light of these arguments against the safety net, this Article endorses the “ecosystem” and other alternative terms that highlight rather than elide unresolved questions about the means and ends of health and welfare laws

Against the Safety Net

Then-Representative Jack Kemp and President Ronald Reagan originated the “safety net” conception of U.S. health and welfare laws in the late 1970s and early 1980s, defending proposed cuts to New Deal and Great Society programs by asserting that such cuts would not take away the “social safety net of programs” for those with “true need.” Legal scholars have adopted their metaphor widely and uncritically. This Article deconstructs the safety net metaphor and counsels against its use in understanding health and welfare laws. The metaphor is descriptively confusing because it means different things to different audiences. Some understand the safety net as comprising morality-tested subsistence programs (as did Representative Kemp and President Reagan), but others understand it as comprising all subsistence programs (whether reserved for those with “true need” or not); or both subsistence programs and poverty-prevention programs; or even the full panoply of laws that affect in any way the human ecosystem in which people live, die, sometimes get sick, and sometimes get help. Moreover, the vision that the metaphor conjures of laws springing into action to rescue an independent individual should she “fall” contradicts feminist and communitarian conceptions of the subject of regulation. Relatedly, this vision of law as a net reifies laws involved in rescue but not those involved in preventing harm, building resilience, or promoting equality, thereby hiding social and structural determinants of health and inequality and taking sides on difficult prioritization questions raised by acknowledging such determinants. In light of these arguments against the safety net, this Article endorses the “ecosystem” and other alternative terms that highlight rather than elide unresolved questions about the means and ends of health and welfare laws

Reflections on the Effects of Federalism on Opioid Policy

One thing we have seen today that we talk about in health law all the time is how the policy, the laws and institutions up at the 10,000 foot level, can so dramatically influence the personal, people’s lived experiences. Our speakers today have done a really great job of drawing out abstract institutional questions and also showing us how those questions have influenced the lives of real people in often tragic ways. Another thing we have seen that we talk about in administrative law all the time is the importance of expertise, especially given how hard it is to trace the impact of laws and institutions on real life. Thank you to our amazing experts who have come a long way to share with us great insights about the really important issue of substance use disorder, and showing us that there really are good answers and bad answers, and maybe even right answers and wrong answers. We have heard important insights about causes, effects, and real solutions that they and other researchers have produced by studying incredibly complicated problems in depth. These problems are nuanced and they are complicated and that is part of what makes expertise so valuable. Before we walk away, I would like to take a moment to dwell on a third theme, which is that knowing the right answer or having the expertise is not necessarily enough to get that answer executed in policy and then to have it impact people on a personal level. Experts certainly can and should try to persuade—and we have talked a bit about how best to do so—to figure out the answers and just go tell the people the answers and get them to vote, or tell policymakers the best way to handle the problem they face. But we have seen throughout the day that persuasion is often not enough, in part because of structural barriers that inhibit the ability of those with power or authority to be persuaded, or otherwise constrain or impede their choices even when they are persuaded

Medicare Bankruptcy

Medicare, the social insurance program for the elderly and disabled, is once again facing insolvency. Spending from the program’s hospital insurance trust fund is predicted to exceed the accumulated payroll taxes and other revenues that support the fund within the next five years, leaving Medicare unable to honor some of its obligations. Yet, what happens if and when Medicare becomes insolvent has not previously been explored in legal scholarship and is not addressed in statute or regulation. This Article confronts for the first time the major legal questions that Medicare insolvency would present. It explains what policymakers could do to make insolvency less unfair, less harmful, less likely, and more effective as a tool to promote compromise and cost control in the program. In short, this Article argues for the establishment, by law, of rules to govern Medicare bankruptcy. The Article’s analysis of how an insolvent Medicare program would work reveals several unsettled legal questions, resolution of which would determine insolvency’s harms, who would pay them, and when. Uncertainty surrounding the consequences of insolvency would be problematic from the ex-post perspective because it would increase the unfairness and magnitude of the associated harms. Further, such uncertainty is already problematic from the ex-ante perspective of a program in a five-decade cycle of insolvency because it inhibits compromise and disincentivizes Medicare’s powerful industry constituents from using their influence to promote cost control. In developing this normative insight, this Article for the first time applies the structural, ex-ante theoretical perspective developed in the municipal bankruptcy literature to the law and political economy of a federal spending program. It concludes by addressing the roles of Congress, the Department of Health and Human Services, and courts in clarifying the consequences of Medicare insolvency. Although a partial framework could and should be established by regulation in the short term, this Article calls for a Medicare bankruptcy provision ultimately to be included as a failsafe in future legislation, if and when it comes, to address the current crisis

Procedural Triage

Prior scholarship has assumed that the inherent value of a “day in court” is the same for all claimants, so that when procedural resources (like a jury trial or a hearing) are scarce, they should be rationed the same way for all claimants. That is incorrect. This Article shows that the inherent value of a “day in court” can be far greater for some claimants, such as first-time filers, than for others, such as corporate entities and that it can be both desirable and feasible to take this variation into account in doling out scarce procedural protections. In other words, it introduces and demonstrates the usefulness of procedural triage. This Article demonstrates the real world potential of procedural triage by showing how Medicare should use this new tool to address its looming administrative crisis. In the methodological tradition of Jerry Mashaw’s seminal studies of the Social Security Administration, this Article uses its in-depth study of Medicare to develop a theoretical framework that can be used to think through where and how other adjudicatory processes should engage in procedural triage. This Article concludes by applying this framework to survey other potential applications for procedural triage, from the Department of Veterans’ Affairs to the Federal Rules of Civil Procedure

Reflections on the Effects of Federalism on Opioid Policy

One thing we have seen today that we talk about in health law all the time is how the policy, the laws and institutions up at the 10,000 foot level, can so dramatically influence the personal, people’s lived experiences. Our speakers today have done a really great job of drawing out abstract institutional questions and also showing us how those questions have influenced the lives of real people in often tragic ways. Another thing we have seen that we talk about in administrative law all the time is the importance of expertise, especially given how hard it is to trace the impact of laws and institutions on real life. Thank you to our amazing experts who have come a long way to share with us great insights about the really important issue of substance use disorder, and showing us that there really are good answers and bad answers, and maybe even right answers and wrong answers. We have heard important insights about causes, effects, and real solutions that they and other researchers have produced by studying incredibly complicated problems in depth. These problems are nuanced and they are complicated and that is part of what makes expertise so valuable. Before we walk away, I would like to take a moment to dwell on a third theme, which is that knowing the right answer or having the expertise is not necessarily enough to get that answer executed in policy and then to have it impact people on a personal level. Experts certainly can and should try to persuade—and we have talked a bit about how best to do so—to figure out the answers and just go tell the people the answers and get them to vote, or tell policymakers the best way to handle the problem they face. But we have seen throughout the day that persuasion is often not enough, in part because of structural barriers that inhibit the ability of those with power or authority to be persuaded, or otherwise constrain or impede their choices even when they are persuaded

Congress\u27s Domain: Appropriations, Time, and Chevron

Annual appropriations and permanent appropriations play contradictory roles in the separation of powers. Annual appropriations preserve agencies’ need for congressionally provided funding and enforce a domain of congressional influence over agency action in which the House and the Senate each enforce written unicameral commands through the threat of reduced appropriations in the next annual cycle. Permanent appropriations permit agencies to fund their programs without ongoing congressional support, circumscribing and diluting Congress’s domain. The unanswered question of Chevron deference for appropriations demonstrates the importance of the distinction between annual appropriations and permanent appropriations. Uncritical application of governing deference tests that emphasize the time and procedural steps an agency put into an interpretation would tend to favor deference for agency interpretations of permanent appropriations, but not for annual appropriations. Yet this result is upside-down if courts’ goal is to promote accountability and avoid interference with the balance of power between the political branches. Chevron has two core functions, a subdelegation function (it transfers the authority delegated in ambiguities from courts to agencies) and an anti-entrenchment function (it relieves interpretations of the solidifying force of stare decisis). As applied to annual appropriations, both functions respect Congress’s primary role in enforcement through the appropriations cycle; as applied to permanent appropriations, both functions interfere with Congress’s domain

Fiscal Waivers and State Innovation in Health Care

This Article describes how the Department of Health and Human Services (HHS) has used fiscal waiver authorities—delegated power to alter federal payments to states under Medicaid and the Affordable Care Act (ACA)—to influence state health policy choices. It highlights how the agency uses its fiscal waiver authorities to shape which reforms states choose to pursue, in some cases inspiring genuine state innovation and in others encouraging states to adopt reforms favored by HHS or discouraging states from adopting disfavored reforms. Moreover, while HHS has sometimes influenced state policy making in ways that further the substantive goals of the ACA and Medicaid (such as by facilitating reinsurance programs that make coverage more affordable), at other times it has done so in ways that undermine those goals (such as by incentivizing states to cut benefits and eligibility or by stifling state single-payer and public-option experiments). This Article theorizes fiscal waiver authorities as a double-edged tool from the perspectives of health policy, federalism, and administrative law. Fiscal waiver authorities are a distinctively valuable tool from the standpoint of health policy because they share federal savings, using delegated scorekeeping to overcome the “tyranny of the budget” and its adverse effects on health reform. But the informality currently surrounding the agency’s use of executive conditions on waiver approvals makes fiscal waiver authorities ripe for leveraging and abuse, raising health policy, federalism, and administrative law concerns. This Article concludes by offering concrete prescriptions for the next phase of health reform, which is poised to rely heavily on either existing fiscal waivers or new ones. It recommends that HHS bring greater formality to its process for approving, denying, or negotiating state waiver requests and cautions that if the agency does not do so then courts may force such formality on it by way of nondelegation, federalism, or administrative law doctrine. It also suggests the development of a pioneer pathway program with greater predictability and fiscal flexibility to facilitate health-promoting state innovations

Deputizing Family: Loved Ones as a Regulatory Tool in the “Drug War” and Beyond

Many laws use family members as a regulatory tool to influence the decisions or behavior of their loved ones, i.e., they deputize family. Involuntary treatment laws for substance use disorder are a clear example; such laws empower family members to use information shared by their loved ones to petition to force their loved ones into treatment without consent. Whether such deputization is helpful or harmful for a patient’s health is a crucial and dubious question discussed in existing literature, but use of family members as a regulatory tool implicates important considerations beyond direct medical impacts that have not been as fully explored. These include the potential for interference with underlying family relationships, the invisibility of care worker burdens, and the inequality of both the burdens and the benefits of care work. This Article shows how these difficult-to-quantify social consequences of deputizing family can and should be incorporated into the evaluation of laws that use loved ones as a tool of public health. It develops a normative framework for doing so and demonstrates the usefulness of this framework by applying it to the question of how and when patients may permit family members to access and authorize disclosures of protected health information. That analysis reveals the desirability of an “active choice” approach to such deputization; as compared to an “isolation by default” approach, active choice holds the promise to better and more fairly encourage, recognize, support, facilitate, and perhaps even compensate the uniquely valuable care work by loved ones that many who suffer from substance use disorder rely upon as a crucial support in their battle with illness. Specific administrative changes to effectuate that conclusion are recommended. Finally, the broader promise and pitfalls of the Article’s “deputization” frame for understanding certain forms of care work are also discussed

Addiction and Liberty

This Article explores the interaction between addiction and liberty and identifies a firm legal basis for recognition of a fundamental constitutional right to freedom from addiction. Government interferes with freedom from addiction when it causes addiction or restricts addiction treatment, and government may protect freedom from addiction through legislation empowering individuals against private actors’ efforts to addict them without their consent. This Article motivates and tests the boundaries of this right through case studies of emergent threats to liberty made possible or exacerbated by new technologies and scientific understandings. These include certain state lottery programs, addiction treatment restrictions, and smartphone applications. The right to freedom from addiction is supported by the nation’s history and tradition. In addition to addressing emergent threats to the freedom of thought, the right links together longstanding aspects of constitutional law assumed to be sui generis, including longstanding (until the 1970s) constitutional prohibitions on state lotteries, the exemption of gambling from direct First Amendment protection, and heightened state interests in controlling addictive drugs. The right to freedom from addiction is also an antisubordinating liberty because it connects the historically marginalized interests of people with substance use and gambling disorders with the increasingly mainstream movement to regulate big tech