As
far as I can tell, legal treatises and casebook chapters on federalism do not discuss
race and my colleagues interested in critical race theory tell me not much is
said in that literature about federalism.
That seems a shame, for they are surely connected in American
constitutional history. There are
reasons, of course, relating to the nature of the Supreme Court’s federalism
jurisprudence, with its somewhat narrow doctrines of “commandeering” and so
on. But it is still unfortunate because
it did not prepare constitutional scholars for what I have described in my
earlier two posts as the sectional and racial aftermath of Sebelius as well as voting rights cases such as Shelby County. The rationales the Court advanced in these cases
crossed an important line – in fact, a color line – and so opened the door to a
racial past that many had thought closed.
As Joseph Fishkin points out with respect to Shelby County, the legacies of the Civil War and Reconstruction are
still with us when the Court uses doctrines such as the “equal dignity” of
states. Once again, race and federalism
are connected.
With
respect to health care, Paul Starr provides a reminder of the sectional reality
that existed prior to the ACA in his book Remedy
and Reaction: “The United States developed out of radically different
social systems in the South and the North, and while the South invoked states’
rights in defending slavery and later Jim Crow, federal intervention was
crucial in efforts to achieve equality from the Emancipation Proclamation to
the civil rights movement. Even now, in
economic and social policy, states in the South (and Southwest) show the
influence of their traditions. Compared
with the rest of the country, they continue to provide the least support for
the living standards, including the health care, of their low-income
population. In Louisiana, for example,
unemployed parents have had to earn less than $2,400 (11 percent of the federal
poverty line) to qualify for Medicaid.
In practice, therefore, turning health policy entirely over to the
states means denying access to medical care and insurance protection for
millions of the poor and near-poor in the South and Southwest.” This was a telling preview of the impact of
the Medicaid opt-out created by Sebelius.
For
now, note Starr’s reference to the “traditions” of the South. Those traditions became newly relevant when
Chief Justice Roberts created the option for states to reject the Medicaid
expansion. This led to the tragedy of
every southern state save Arkansas rejecting the expansion (Louisiana adopted
the expansion in 2016). This outcome was
surely connected with the South’s history.
Historians have detailed how slavery had pervasive effects, not only on
southern society, but its modes of governance.
In his history of the early republic, for example, Gordon Wood comments:
“[s]lavery even perversely affected the tax system and other public policies in
the South. The Southern legislatures
taxed their citizens much less heavily and spent much less on education and
social services than did the legislatures of the North.” In light of the realities I have reviewed
with respect to Medicaid since 1965, this should sound familiar. Matters did not improve after the Civil War
and Reconstruction. The white “redeemer”
governments that took over had few resources and slashed state budgets. According to C. Vann Woodward, this left
little for public education, public health, and aid-dependent people such as
the insane and the blind. All of the
facilities that might have helped these groups wound up in “a primitive state.” As a consequence the South entered the
twentieth century without a robust system of public education or public health.
The
consequences of Sebelius relate
strongly to this earlier history. A 2013
NYT story quoted H. Jack Geiger, a founder of the community health center model:
“The irony is that these states that
are rejecting Medicaid expansion — many of them Southern — are the very places
where the concentration of poverty and lack of health insurance are the most
acute . . . It is their populations that have the highest burden of illness and
costs to the entire health care system.”
Anyone thinking that the connection between federalism and race in
the South was in the past should have received a wake-up call after Hurricane
Katrina hit the Gulf Coast in 2005. As
Gary Rivlin’s book Katrina recounts in detail,
the aftermath of the storm featured multiple and seemingly unrelenting episodes of
racism, racial intolerance, and official decision making related to race that
disadvantaged African Americans.
Consider
the relevance of judicial doctrine in creating this situation. New Deal decisions such as Carolene Products are often described as
embodying a doctrine of deference to the determination of national policy by
the political branches. I suggest they are
actually double-edged. The other edge is
a warning, however implicit, that a lack of deference in cases concerning the
limits of the enumerated powers would lead inevitably to the Court creating its
own policies. So it proved with Sebelius, in which the Court materially
modified the ACA, transforming it into something Congress never anticipated. Although he lacked relevant
expertise, Roberts somehow knew that childless adults could not be among the “neediest”
among us. But even if there was a kernel
of a valid point to be made about the changes the ACA made to Medicaid, Roberts
and the Court ignored the consequences of the vast differences in the way the
states had implemented Medicaid. Those
differences pretty much came down to the reality that southern states always
had lower eligibility standards – standards often well under the federal
poverty level – which hurt their poor citizens, especially African Americans. The ACA solved this problem with respect to
parents and childless adults. But the
Court permitted the states to reinstate inequality.
I
see this as perhaps the central challenge for our federal structure going
forward, something you won’t read about in casebooks. Many believe that inequalities unrelieved by
economic growth are important policy problems.
But Sebelius and episodes like
Hurricane Katrina exposed the problem of inequality among the several states. Put bluntly, some states cannot take care of
themselves. They labor under crippling
handicaps and need help, sometimes even intensive care. They cannot cope alone with overwhelming
problems of poverty, poor educational systems, medical neglect, and rural
isolation. They need national assistance
and the Supreme Court should not be in the business of standing in the way. That’s the true tragedy of Sebelius.
Works
Cited:
Gary
Rivlin, Katrina: After the Flood (2015)
Shanna
Rose, Financing Medicaid: Federalism and the Growth of America’s Health Care
Safety Net (2013)
Paul
Starr, Remedy and Reaction: The Peculiar American Struggle over Health Care
Reform (2011)
Frank
J. Thompson, Medicaid Politics: Federalism, Policy Durability, and Health
Reform (2012)
Gordon
S. Wood, Empire of Liberty (2009)
C.
Vann Woodward, Origins of the New South (1951)
Mark
A. Hall, States’ Decisions Not to Expand Medicaid, 92 N.C. L. Rev. 1459 (2014)
Nicole
Huberfeld, Elizabeth Weeks Leonard, and Kevin Outterson, Plunging into Endless
Difficulties: Medicaid and Coercion in National Federation of Independent
Business v. Sebelius, 93 B.U.L. Rev. 1 (2013)
Elizabeth
Weeks Leonard, Crafting a Narrative for the Red State Option, 102 Ky. L.J. 381
(2013-14)