Saturday, September 23, 2017

Graham-Cassidy and the Spending Clause

by Michael Dorf

Yesterday I ran a piece on Take Care arguing that the funding formula of Graham-Cassidy violates the requirement in the SCOTUS Spending Clause cases that any conditions placed on states' receipt of federal funds must be "unambiguous." I meant to cross-post it here but then Sen. McCain announced he would vote against the bill, and so I concluded that there was no point. But it looks like Graham-Cassidy is not fully dead yet and might even come back to life in the next few days. Accordingly, I am hereby promoting my argument in the hope that, at the margin, it might affect the debate over the bill--which is plenty bad quite apart from my contention that it is unconstitutional.


Shag from Brookline said...

Over the years how successful have state experiments been regarding healthcare? I have read about some CA successes with its hospital systems. I'm a lifelong resident of MA and am aware more directly of RomneyCare which served as a model at the federal level for ACA (aka Obamacare). Perhaps other states have made positive contributions to healthcare. But it took Obamacare, over time, to increase significantly the number of those insured for healthcare. During most of my legal career, I was basically self-employed, relying upon private health insurance plans. Late in my career I became an employee of a long-time client and had the benefit of an employer plan at a time when I was on Medicare. I have no plans to voluntarily leave MA. [No "Dotard" jokes, please!] But I have always liked the idea that in America we can vote with our feet. Some people feel locked in to their employment because of employer provided healthcare benefits. Some people might be reluctant to leave their states for various reasons. But under Graham-Cassidy with its block grants to the states, there may be disparities in healthcare available because of options available to each state. Can residents really vote with their feet in the event a state were to exercise such options that might negatively impact residents' healthcare? For some semblance of equality of healthcare, there should be certain core healthcare principles in all states. Does Mike's constitutional challenge to this Cracker-Bill effectively address this?

Joe said...

One of the people at Volokh Conspiracy was big on the idea that in America we can vote with our feet, which is true up to a point. But, there are various burdens on the process, especially for certain people. So, having certain states being favored is problematic in various ways. Even in that limited respect.

As to the post, it's useful to have it out there, especially since even if this one doesn't work, Republicans will keep on trying & it's good to know everything wrong with potential mechanisms.

Shag from Brookline said...

Perhaps Mike might address the "overnight" changes in the Cracker-Bill in the context of his "Take Care" unconstitutional argument. Do such changes make Mike's argument stronger?