Abstract
This Article's analysis proceeds in three parts. Part II of this article outlines the policy considerations in determining the proper federal and state balance in health care policy. There are strong arguments for state primacy in health care policy, but also substantial justifications for federal intervention. Part III discusses the concept of "cooperative federalism," under which the federal government encourages state governments to implement policies in accord with federal priorities, and identifies constitutional limitations on the federal government's ability to direct or even influence state policy choices. Even if the constitutional challenges to the individual mandate fails, federalism-based challenges to implementation of the ACA [Affordable Care Act] could succeed.
Additionally, there are practical limitations on the federal government's ability to influence state policy choices. Part IV discusses how federal policy decisions can influence state policy choices, and not always in the way federal policymakers intend. Federal actions can have both direct and indirect effects on state regulatory choices. These effects may be either positive or negative, in both quantitative and qualitative terms. The potential of both positive and negative effects weakens the common presumption that adopting a federal "floor"--a minimum federal standard below which no state may operate--will increase social welfare. The adoption of policies designed to raise the "floor" across states may also discourage state-level innovation and create the practical effect of lowering the "ceiling" as well. Considering these potential effects can reduce the unintended consequences of federal action and intervention in health care policy.
This abstract has been adapted from the author's introduction.
Document Type
Article
Publication Date
Spring 2011
Publication Information
20 Kansas Journal of Law & Public Policy 199-221 (2011)
Repository Citation
Adler, Jonathan H., "Cooperation, Commandeering, or Crowding Out?: Federal Intervention and State Choices in Health Care Policy" (2011). Faculty Publications. 2308.
https://scholarship.law.wm.edu/facpubs/2308
Included in
Administrative Law Commons, Constitutional Law Commons, Health Law and Policy Commons, State and Local Government Law Commons
Comments
Written for the symposium The Role of States in Federal Health Care Reform (2011) at University of Kansas School of Law.