We’ve heard a lot about “death spirals” and how they could stand in the way of the Affordable Care Act’s goal of a functioning individual health insurance marketplace. Seth Chandler has an interesting blog devoted to the subject, “ACA Death Spiral.” And those who have been following King v. Burwell, the Supreme Court’s latest ACA case, have been predicting that a ruling against the government there would be disastrous because it would only exacerbate the “death spiral” threat to individual health insurance markets. (See a sum-up of such predictions here.)
But could death spirals save the ACA? According to a fascinating amicus brief filed in the King case by a number of interest groups and co-signed by several prominent law professors and Bill of Health contributors (I understand that Abigail Moncrieff is the driving force behind the brief, joined by Allison Hoffman, Sharona Hoffman, Russell Korobkin, Joan Krause, Stephen Marks, Kevin Outterson, and Theodore Ruger), the answer might be yes. The argument boils down to “death spirals to the rescue.” (Here is a copy: 14-114 bsac JALSA.)
By Theodore Ruger
Cross-posted from Constitution Daily.
Last summer, the Supreme Court put its money where its mouth was in terms of federalism doctrine in its landmark decision about the Affordable Care Act (ACA), inNFIB v. Sebelius.
By upholding the ACA, with its myriad implementation choices delegated to the states, and by reconfiguring the Act to give states additional discretion over whether to expand their Medicaid programs, the Court did more in NFIB to advance the actual working realities of American federalism than did many of the leading federalism decisions of the prior two decades.
This past weekend was the eleventh annual Health Law Scholars Workshop, and I wanted to take a minute to congratulate the 2012 Scholars: Alena Allen (Memphis), Leo Beletsky (Northeastern), Christina Ho (Rutgers-Newark), and Lindsay Wiley (American). Each scholar had two hours dedicated to a discussion of their work, with expert reviewers including Rebecca Dresser (Wash U), Elizabeth Weeks Leonard (Georgia), Kevin Outterson (Boston University), Ted Ruger (Penn), and Rob Schwartz (New Mexico/Hastings), along with the health law faculty at the Center for Health Law Studies, Saint Louis University. The Workshop is sponsored by the American Society of Law, Medicine & Ethics and SLU’s Center for Health Law Studies, and scholars are selected by a health law committee through blind peer review. To date there have been 44 scholars, including many contributors to Bill of Health.
We’re excited to introduce and welcome Ted Ruger to our blogging community as a regular contributor. You can start to expect posts from Ted a bit later in the fall, as he clears a few things off his desk.