Nicole Huberfeld (University of Kentucky College of Law) has posted Federalizing Medicaid (University of Pennsylvania Journal of Constitutional Law, Vol. 14, Forthcoming) on SSRN. Here is the abstract:
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This paper asserts that Medicaid should be fully federalized. While Medicare was a big idea program, Medicaid was an under-theorized and underfunded continuation of already existing state-based welfare programs funded by federal grants. This fragmented cooperative federalism structure has no currently recognizable benefits aside from cost sharing. The Patient Protection and Affordable Care Act takes steps toward federalizing Medicaid by creating universal eligibility combined with much higher federal funding for new enrollees, but it is not a complete federal capture of the Medicaid program. Some state attorneys general have claimed that the Medicaid expansion is "an unprecedented encroachment on the sovereignty of states" and that the states are being coerced into continuing to participate in Medicaid. This claim was dismissed by the federal district court hearing the challenge to PPACA, but only because coercion is an uncomfortable concept for judges. No one has grappled with the reasons that Medicaid does not satisfy federalism goals, thus a key reason for modernizing Medicaid’s structure has been ignored. While it is true that the states have included health care within their traditional police powers, it is also true that the states are traditionally uneven and inadequate in delivering on this particular police power, especially given historic discriminatory attitudes toward the poor. This essay begins the task of describing why Medicaid should be federalized and leaves behind the overly formalistic debate regarding the role of states in Medicaid.
