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Quick Update

Apologies for the prolonged blogging hiatus. I’m not dead yet, just snowed under—I’ll resume my regular blogging at the nearest occasion. Herewith a forthcoming law review piece on the “Medicaid ruling” of NFIB v. Sebelius. The gist of it: NFIB didn’t really do very much about the horrendous economic incentives that drive the program.

“Not very much” doesn’t mean “nothing”: on the margin, the ruling may have increased some states’ willingness to forego the “opportunity” to expand the program even further; and in the short term it is an opportunity. To illustrate: in my home state of Virginia, newly elected Governor McAuliffe promised to finance big road-building investments—how? By participating in the Obamacare Medicaid expansion.

It’s the long-term costs that are ruinous. Not that that would concern a single-term governor. The question is, how big is the margin? Not big enough for Arizona, which has decided to join. This study strongly suggests that the consequences will be very bad. It’s a sad story. Sadder still is the larger story: Medicaid is ruinous with or without Obamacare.

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Related

Obamacaid Revisited

In the pending Obamacare litigation, the plaintiff-states argue that Title II of the Affordable Care Act (“Obamacaid”) unconstitutionally “coerces” them to participate in a grand expansion of Medicaid. I’ve argued here and there that the plaintiffs will and should lose that argument. A terrific amicus brief by Vanderbilt Law School professor James Blumstein makes a powerful case on the other side. Ultimately, Jim’s brief doesn’t fully persuade me. But it comes very, very close on account of its recognition that Obamacaid’s crucial problem has to do with the bilateral risk of opportunistic defection from a pre-existing, quasi-contractual relation (Medicaid), not with some “economic coercion” story about federalism’s “balance” and the poor, pitiful states and their faithful public servants. (For ConLaw dorks: the key cases are Pennhurst and Printz, not South Dakota v. Dole or Steward Machine.) I hope to explain sometime next week; today, a few additional remarks on economic coercion. Read more