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University of California - Davis




The Supreme Court’s 2021 term produced a remarkable number of blockbuster decisions, nearly hiding an underlying federalism agenda that surfaced in health care, reproductive rights, administrative law, and public health related domains. Health law has been a vehicle for constitutional change before, but the stakes for older laws, most of which rely on states to accomplish national goals, have been raised. The Court has doubled down on interpretive methods that limit governmental power, using formalist tools like clear statement rules that demand specificity and offer little deference to lawmakers or regulators. These rules have constitutional dimensions, including separation of powers and federalism, and have substantive implications. Add the major questions doctrine, which is likely to have deregulatory impact across public laws of all stripes, and a pattern is developing in which the “New Roberts Court” is centering a formal, separate-spheres vision of federalism that favors states’ rights, regardless of states’ capacity to wield that power or evidence that they do not.

The stakes could not be higher. Law is a determinant of health, controlling access to individual medical care and public health. For most social programs, Congress relies on federalism, which divides power and responsibility for designing and implementing policies across federal, state, and local governments. However, laws enacted before the Court’s “Federalism Revolution” in the 1990s, like the Medicaid Act, the Public Health Service Act, and the National Emergencies Act, have no federal fallback if states refuse to partner. The politics of the COVID-19 pandemic illuminated state leaders’ prioritization of party over partnering, stymieing federal laws needed to reach across state borders in an emergency, and demonstrating the dangers of states’ veto of federal law when no fallback exists. Yet, state capacity to govern, to exercise power allocated by federalism, has been assumed by judges and theorists alike. The pandemic crystalized that the governance capacity assumption is out of step with evidence that many states have neglected public health and other social programs. Further, the inherent variability federalism invites impacts health inequitably, especially for racial and ethnic minorities and other vulnerable populations.

This article examines the Court’s recent decisions elevating formalism through imposing clear statement rules on old laws, foregrounding dual sovereignty federalism, and discounting the ubiquity of federal/state partnerships. The article next questions theoretical assumptions about federalism’s values and illustrates the risks through two key examples, Medicaid expansion and the COVID-19 public health emergency. The article then explores possible solutions, identifying legal and ethical principles courts, administrative agencies, states, and other policymakers could use given that the Court is not likely to change course anytime soon. Congress has authority to adopt fully federal laws, or to amend laws that have no fallback, either of which have the ironic effect of increasing federal presence in states that refuse to partner. Beyond legislative commitment, the traditional federalism values of state sovereignty and political accountability could be informed by concrete measures of governance capacity such as budgeting adequate funding. Likewise, the values of state experimentation and policy variation are more than theory, and I draw on ethical and legal principles for valid experimental design to explain how they might be evaluated. This article rings an alarm bell that many federal health laws are in danger of instability and dilution, but it may be possible to walk back from the precipice.

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