This Article is one of only a small number of proposals over the past forty-six years for federalizing Medicaid. None of these proposals has grappled directly with the reasons that Medicaid does not satisfy federalism goals, and thus a key reason for modernizing Medicaid’s structure has been ignored. Despite being an area of “traditional state concern,” healthcare should no longer be left to the economic and political whims of the states, as Medicaid is not an effective Brandeisian “laboratory of the states.” Admittedly, some would oppose centralization on the ideological grounds that more federal government power is bad, and more state or local power is good. But Medicaid was built on a feeble foundation that allowed a patchwork program to continue and has been solicitous of state control over welfare programs ever since—not a strong argument for the significant medical variations and administrative costs that occur as a result of Medicaid’s divided structure.

This Article first will discuss the history and historical structure of Medicaid and its cooperative federalism approach. This section will focus on two persistent themes of states’ rights and limiting benefits to the deserving poor in the creation of Medicaid and will demonstrate how the Patient Protection and Affordable Care Act (PPACA) has begun the federalization process. The Article will next consider the modern Supreme Court’s interpretation of federalism to understand the current meaning of federalism as it maybe implemented by the Roberts Court. Though the Medicaid expansion is, at least in terms of pages written, a small part of the challenges to PPACA, the litigation provides a vehicle for thinking through the real meaning of cooperative federalism versus dual sovereignty as explicated by the Court. The final section of the Article will suggest that medicine generally and Medicaid specifically are already on the path to nationalization and will explore the conclusion that Medicaid should be nationalized because federalism ideals are generally not served by the current structure. Indeed, as this Article goes to press, the Court has granted certiorari on the Medicaid expansion issues presented in Florida v. HHS.

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Notes/Citation Information

University of Pennsylvania Journal of Constitutional Law, Vol. 14, No. 2 (December 2011), pp. 431-484



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