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Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Process Values and Mass Reductions in Medicaid and SNAP
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Sunday, March 19, 2023
Process Values and Mass Reductions in Medicaid and SNAP
David Super
The economy stubbornly
marches forward past the challenges of persistent inflation, a rate-raising
Federal Reserve, and blundering bankers.
Yet this is a difficult time for tens of millions of low-income people
in this country. Emergency
liberalizations enacted in Medicaid and the Supplemental Nutrition Assistance
Program (SNAP) are ending, with benefit reductions and terminations for huge
numbers of people very much still in need.
This event is important in its own right. It also raises questions about the process of
policy-making in our deeply polarized and unequal nation. State fiscal
crises historically lead to cuts in Medicaid eligibility and services: Medicaid plays such a large role in states’
budgets it presents an extremely inviting target. With public health costs rising and revenues
crashing in the early days of the pandemic, Congress could foresee sweeping state
Medicaid cuts coming at a time when low-income beneficiaries could least afford
them. Accordingly, it both increased the
federal matching rate for Medicaid expenditures and, to forestall covert
Medicaid cuts, made it very difficult for states to terminate people from the program. These measures were tied to the duration of
the public health emergency declared for COVID-19. Because many
Medicaid beneficiaries’ incomes are quite volatile, a substantial number of
people are now receiving Medicaid with incomes above their states’ eligibility
limits. Medicaid advocates and federal
and state administrators long have been preparing for the eventual “unwinding”
of these emergency measures, with states needing to redetermine tens of
millions of people’s eligibility within a short period using staffs that in
many instances have shrunk since 2020.
Many Medicaid beneficiaries remain eligible, sometimes under a different
eligibility criteria from the one under which they were first approved. Most of the rest qualify for private
insurance with large subsidies under the Affordable Care Act, but that requires
a separate application. In states that
implemented the ACA’s Medicaid expansion, very few Medicaid beneficiaries should
lose health care coverage completely, but sorting out which beneficiaries qualify
for coverage under which program is complicated enough that many are at risk of
falling through the cracks. Congress’s
response to rapidly rising food costs and cratering employment during the early
months of the pandemic was to provide for “supplemental allotments” in SNAP and
to allow households with children to receive substitute food assistance where school
meal and summer food programs were shuttered.
The Trump Administration bizarrely interpreted the supplemental
allotment statute to reject the across-the-board increase Congress had
specified and instead raise every household’s benefits to the maximum. This gave the least-poor recipients a huge
increase and but nothing at all to the poorest one-third of households that
were already getting the maximum. The
Biden Administration later partially reversed this policy to give more help to
the poorest households. Congress and USDA
under both administrations also allowed states to forego eligibility reviews,
leaving many households to continue to receive SNAP benefits based on having
established eligibility many months earlier.
With COVID-19
still killing
hundreds of people per day and millions of the chronically ill – a group
over-represented among low-income people – still at considerable risk working
outside the home, the Biden Administration has repeatedly extended the public
health emergency, which had the effect of continuing the emergency Medicaid,
SNAP, and child nutrition measures. This
has brought increasing criticism from Republicans, and some
Republican-controlled states ended some of these measures on their own. The end-of-session
omnibus legislation enacted just before Republicans took control of the House
included provisions setting firm dates for ending enhanced Medicaid funding,
the restrictions on Medicaid terminations, and SNAP supplemental
allotments. The last supplemental
allotments in SNAP were issued in February, meaning that this month almost
every SNAP household in the country received a large benefit cut. The money saved by ending the supplemental
allotments early was spent creating a permanent new program to provide food aid
directly to the families of low-income children that lack access to a Summer
Food Program site when school is closed.
This is important because only a tiny
share of communities offer meals to continue the work of the school lunch and
breakfast programs. Still, a steep drop
in SNAP benefits for already hard-pressed households will unquestionably cause
real hardship, particularly with the next inflation adjustment more than half a
year away. The year-end
omnibus also prescribed a phase-out of the enhanced Medicaid funding and
eligibility protections over the next several months. Savings from these changes funded increases
in the capped funding Puerto Rico and other U.S. territories receive for
Medicaid. With the caps set far below
what these jurisdictions would have received if they were states, health care
coverage there has been chronically narrower, less secure, and subject to
harsher eligibility limits than that in even the most miserly states. To date, states’ experience with unwinding
modified eligibility procedures in SNAP has been quite varied. Some states have seen precipitous drops in
participation that suggest many eligible households have been purged from the
rolls. Other states have proceeded more
carefully and seen much smaller drop-offs.
Advocates’ assessments of states’ plans for Medicaid unwinding are
similarly varied, with some states apparently ready and willing to minimize the
number of people falling between the cracks and others seemingly relishing the
prospect of big Medicaid savings. Because states are
not responsible for SNAP benefit costs, excessive losses of coverage likely result
either from ideological preferences or decrepit state administrations. The latter may reflect ideology as well, with
states that devalue assisting low-income people allowing their administrative
capacity to erode. It was no coincidence that a decrepit
computer in Florida failed to get unemployment compensation to many of those the
pandemic rendered jobless. The rise and fall
of pandemic-related improvements to public benefit programs raises several
important issues about our political process.
One issue concerns
the ethics of allowing expressly temporary programs to end. Some Democratic leaders and national
anti-poverty non-profits felt strongly that their credibility, and their ability
to secure responses to future crises, depended on their cooperating in the
wind-up of benefits they had sought as temporary measures. At one time, when Congress had many
conservative but principled Republicans such as Bob Dole, Richard Lugar, and
Bill Emerson, this clearly would have been true: those leaders would cooperate on meeting
genuine needs but fiercely refuse to deal with anyone they regarded as acting
in bad faith. Times, however,
have changed. Opponents of enacting
these measures in the first place asserted – falsely – that temporary measures
enacted in response to the Great Recession never ended. No doubt anti-poverty advocates’ acceptance
of the enhanced benefits’ end this time will not prevent the same dishonest claims
from being made next time. It also is
true that Republicans fiercely resist the termination of upper-income tax cuts,
such as those in 2001 and 2003, justified as responses to economic crises. A plausible argument could be made that, in
the zero-sum game of fiscal policy, liberals should play by the same rules
their opponents do rather than engage in unilateral disarmament. Yet as Fishkin and
Pozen have pointed
out, the two partisan coalitions are not symmetrical. Many of the champions of “good government” that
once moderated the Republican Party or acted as swing votes are now within the
Democratic constituency. They have not,
however, lost their commitment to “good government” values, including fidelity
to one’s word. They also adhere to norms
of policy debate that limit joinder,
making the general inadequacy of anti-poverty programs in this country an impermissible
argument for continuing explicitly temporary programs. With the electorate as evenly divided as it
is, liberals cannot afford to fracture their coalition by alienating their “good
government” champions. The politics
likely would not have allowed continuing the expansions much longer; trading
their last few months for smaller but important improvements in Summer Food and
health care in the territories was likely all the politics would bear. A second question about
the end of these enhancements is one of representation. For the reasons just stated, I agree with the
decision to include these measures in the year-end omnibus. So do the people I work with most closely in
Washington. But who are we? None of us are at risk of losing our health
coverage, our homes, or our access to food.
If the provisions
at issue affected billionaires, big oil, or banks, decisions on legislative
strategy would be made not by non-profits friendly to their interests but by
the affected entities themselves. They likely
would not care about how taking “unreasonable” positions might undermine their
lobbyists’ credibility; if necessary, they could later change lobbyists. One could argue that our current political
system makes some effort to ensure that a variety of positions are considered
but does far less to ensure that a variety of voices get heard. And, certainly, Medicaid and SNAP recipients
lack the funds or the coordinating
infrastructure to punish legislators who disappoint them the way trade associations
do. This problem
cannot be addressed meaningfully with one-off consultations. The affluent’s effectiveness in policy
formulation comes in large part from their having access to nuanced longitudinal
insight about what the politics will and will not bear. When welfare rights and similar groups that
have not previously been a part of policy debates are brought in just as key
decisions are about to be made, they face an immediate, impossible guess: whether to trust liberal advocacy groups’
political judgment or to accuse those groups of selling out low-income people’s
interests. Myriad bad outcomes have
resulted from each of those choices. I am convinced that
we got it right this time, that the omnibus legislation was by far the best
deal on the table and that advocacy groups’ refraining from trying to squeeze
every last month out of the Medicaid and SNAP improvements will give low-income
people a meaningfully better chance of getting help in the next
systemic emergency. But something is
very wrong with a system where this decision was so significantly the choice of
people like me. @DavidASuper1
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