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August 14, 2012|Constitution of Affluence, John Hood, Medicaid

Give Me Your Poor, Uninsured Masses. . . .(On Second Thought, You Take Them)

by Michael S. Greve|

John Hood has a compelling piece in this week’s National Review, arguing that governors  should “Say No to Medicaid Expansion.” Even though Obamacare offers states a 100 percent reimbursement rate for newly eligible enrollees, states are rightly nervous about getting stuck with hidden costs:

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July 1, 2012|Alden v. Maine, Chief Justice Roberts, Federalism, Justice Breyer, Justice Kagan, Medicaid, NFIB v. Sebelius, Printz v. United States, Professor James F. Blumstein, residual sovereignty of the states, Tenth Amendment

NFIB v. Sebelius: A Case About Sovereignty

by Tom Christina|

I have spent the last several days reading and re-reading the opinions in NFIB v. Sebelius, hoping to find a unifying “theme” to organize all my thoughts about the case before posting about any of them.  This exercise has left me with a deeper appreciation of how blogging differs from other forms of expository writing; a headache; and a vague sense that NFIB v. Sebelius is in part a case about sovereignty (as I had thought when I submitted this amicus brief (link no longer available) to the Eleventh Circuit).   

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April 3, 2012|Medicaid, Obamacare, Paul Clement, PPACA

Federalism’s Hope: Analysis and Speculation

by Michael S. Greve|

Yesterday’s post described a sharp sectional divide in contemporary American federalism: pro-competitive states versus pro-cartel states. The divide holds across Obamacare/Medicaid, labor, environmental, tax, and cultural issues. Here is the basic map again (the competitive coalition appears in red, the cartel cabal in blue):

Today, as promised, some thoughts on what the sectional divide might mean for American politics and federalism.

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March 15, 2012|block granting, Medicaid, Obamacare, State Health Flexibility Act

ObamaCare and Medicaid: More Pre-Argument Arguments

by Michael S. Greve|

Part 2: Thinking About Reform

Yesterday’s post made two points: (1) Medicaid is hopelessly unsustainable, regardless of the outcome of the Supreme Court litigation. (2) The brawl over ObamaCare’s Medicaid expansion isn’t a conflict between an imperious federal government and virtuous states; it is a conflict that pits the profligate states that have historically driven Medicaid’s  expansion (and are defending ObamaCare in the Supreme Court) against the more cost-conscious plaintiff states. In conjunction, these points suggest an urgent need for a political reform strategy—one that builds on Medicaid’s actual dynamics, as opposed to federalism and “devolution” tropes; not the perennial non-starter of “block-granting” Medicaid, but something like a “free state” solution.

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February 14, 2012|Massachusetts v. Mellon, Medicaid, Obamacaid, Obamacare, PPACA, South Dakota v. Dole

Obamacaid’s Constitutional Poison

by Michael S. Greve|

The government’s reply brief on Obamacare’s Medicaid expansion (“Obamacaid”) provides a competent, confident defense of the statute. It also provides occasion to revisit the parties’ positions one more time and to draw two conclusions. One: in attempting to buttress a losing argument against Obamacaid, the plaintiff-states may have detracted, unwittingly, from a winning argument against Obamacare’s “health benefit exchanges.” Two: the true problem isn’t Obamacaid’s constitutionality but its pernicious political economy.

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January 27, 2012|Federalism, FMAP, Hamilton's Paradox, Jonathan Rodden, Medicaid, Obamacare, state debt

The Debt Trap, Part (2): The Unaffordable We-Don’t-Care Act

by Michael S. Greve|

Yesterday’s post, on the seemingly unstoppable growth of federal transfer payments to state and local governments, ended on a question: what happens when both parties to the transaction, the states and the feds confront unsustainable commitments? The brilliant answer our federalism has produced: make yet more unsustainable commitments. Why?

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January 19, 2012|ARRA, James Blumstein, Medicaid, MOE, Obamacare, PPACA, Robert Helms

Obamacaid Revisited

by Michael S. Greve|

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 (link no longer available) that the plaintiffs will and should lose that argument. A terrific amicus brief (link no longer available) 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.

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Book Reviews

A Mirror of the 20th-Century Congress

by Joseph Postell

Wright undermined the very basis of his local popularity—the decentralized nature of the House—by supporting reforms that gave power to the party leaders.

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The Graces of Flannery O'Connor

by Henry T. Edmondson III

O'Connor's correspondence is a goldmine of piercing insight and startling reflections on everything from literature to philosophy to raising peacocks.

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Liberty Classics

Rereading Politica in the Post-Liberal Moment

by Glenn A. Moots

Althusius offers a rich constitutionalism that empowers persons to thrive alongside one another in deliberate communities.

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James Fenimore Cooper and the American Experiment

by Melissa Matthes

In The American Democrat, James Fenimore Cooper defended democracy against both mob rule and majority tyranny.

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Podcasts

Stuck With Decadence

A discussion with Ross Douthat

Ross Douthat discusses with Richard Reinsch his new book The Decadent Society.

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Can the Postmodern Natural Law Remedy Our Failing Humanism?

A discussion with Graham McAleer

Graham McAleer discusses how postmodern natural law can help us think more coherently about human beings and our actions.

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Did the Civil Rights Constitution Distort American Politics?

A discussion with Christopher Caldwell

Christopher Caldwell discusses his new book, The Age of Entitlement.

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America, Land of Deformed Institutions

A discussion with Yuval Levin

Yuval Levin pinpoints that American alienation and anger emerges from our weak political, social, and religious institutions.

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About

Law & Liberty’s focus is on the classical liberal tradition of law and political thought and how it shapes a society of free and responsible persons. This site brings together serious debate, commentary, essays, book reviews, interviews, and educational material in a commitment to the first principles of law in a free society. Law & Liberty considers a range of foundational and contemporary legal issues, legal philosophy, and pedagogy.

The opinions expressed on Law & Liberty are solely those of the contributors to the site and do not reflect the opinions of Liberty Fund.
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