Via Kevin Denny, via @pauldotkelleher.

First there’s an argument from “sheer volume”: the enormity of federal Medicaid funding unconstitutionally tips the balance of federalism in favor of the feds. The difficulty with this argument is that, if the sheer volume of Medicaid makes new conditions on federal spending unconstitutionally coercive, then every new amendment that has increased states’ program costs in the past several decades must also have been unconstitutional.

Then there’s an argument from the disproportionality of new conditions: a state’s noncompliance with the new conditions jeopardizes all its federal funds, not just funds newly dedicated in the ACA. Same problem as before. If new conditions on existing federal funding were unconstitutionally coercive, then you’d have to explain why the Supreme Court reached the exact opposite conclusion in South Dakota v. Dole.

And then there’s a third argument that Joondeph sums up like this:

[T]he ACA (a) imposes an individual mandate on all Americans to acquire health coverage, (b) applies that mandate to everyone, including Americans below the poverty line, but (c) provides no subsidy for those persons falling below the poverty level (though it does provide subsidies for those between 133% and 400% of poverty). Thus, the ACA on its face assumes that every state will comply with the Act’s Medicaid conditions, for this is the only way envisioned by the Act for indigent Americans to satisfy the mandate.

So Congress imposed the mandate assuming that the states will comply with new Medicaid conditions, and therefore . . . the ACA is coercive? Hmmm. Well, the first problem with this argument is that it is not an argument—it doesn’t connect premises to a conclusion. But even if we spot them a major premise to be articulated later, there are two other, fatal problems with it: it confuses states with the people who live in them; and it does not take into account that the ACA provides exemptions to the mandate for those who cannot afford qualifying coverage.

If State XX decided to quit Medicaid rather than accept new conditions on federal funds, the formerly Medicaid-eligible population of XX would likely be less than enthused, mandate or no. But here’s the thing. Even if they were subject to the mandate, the fact that Congress had imposed that burden on them would have precisely nothing to do with the state and its former Medicaid program. In no sense does the individual mandate place demands on the states in their sovereign capacity. It is touching that these states would equate a mandate upon its less fortunate citizens as a mandate upon the sovereign state itself. Touching, but false. And irrelevant. The mandate has nothing to do with Medicaid and nothing to do with the states (except in the minor sense that state officials in the Exchanges might certify compliance with the mandate).

What’s more, if Medicaid coverage were not available, the mandate would not apply to many people with incomes under 133% of the poverty level (FPL). This gets pretty complicated, so I’m going to save the details for another post. Suffice it to say that the mandate may not apply to people earning under 100% FPL, and people between 100% FPL and 133% FPL will either have access to subsidies or will be exempt due to the ACA’s provision excusing anyone for whom the cost of the cheapest qualifying plan would be more than 8% of their income.

In fairness, it is probably best not to think of these as separate arguments. Each fails on its own, but together they loosely approximate plausibility. As Joondeph wrote in an earlier post:

Perhaps, as the states’ brief seems to suggest, it is not any one of these factors in isolation, but the three in combination, in the context of a singularly enormous federal spending program, which renders the ACA’s Medicaid expansion unconstitutional. This is not implausible. But it is also hard to figure out how the Court could ever articulate a rule or principle of constitutional law that actually operationalizes the idea. Even if one could articulate it, the implications could be extremely destabilizing for constitutional law, and in an area that really matters (and matters on a regular, ongoing basis).

As I’ve written before, the Supreme Court’s precedents have left the door open to this kind of challenge, but they don’t illuminate a distinct line between what is and isn’t coercion. Probably because there isn’t one.

Via FSM, h/t @rHumanist.

But that’s not to say that there’s anything wrong with private enforcement of Medicaid provisions in general. For example, Igor Volsky wrote favorably of the Washington state supreme court’s recent decision blocking reductions in coverage of personal care for children. I agree completely with that decision and with the use of private litigation to enforce the provisions of federal Medicaid law at stake in that case.

But there are significant differences between the Washington case and the Independent Living Center case which is now pending at the U.S. Supreme Court (and which I wrote about last time). The Washington case, Samantha A. v. DSHS (pdf), concerned the “comparability requirements” of the federal Medicaid law, 42 U.S.C. 1396a(a)(10)(B), aka “Section 10(B).” Independent Living concerns the “equal access” provision, 42 U.S.C. 1396a(a)(30)(A), aka “Section 30(A).” The relevant difference between them is that Section 10(B) is cast in terms of guaranteeing a clear and specific individual entitlement, whereas Section 30(A) issues a broad, multi-faceted directive to the states which, while intended to protect Medicaid beneficiaries as a whole, does not accord them specific rights individually.¹

The point is, some statutory provisions are better suited than others for enforcement by litigation. It is one thing to adjudicate individuals’ rights, but another thing entirely to adjudicate whether broad policy objectives are met.

1. To be enforceable under 42 U.S.C. 1983, a statutory provision must contain clear rights-creating language. Note that the case was decided in state court, which means that a federal cause of action was not necessary anyway. But the case undoubtedly could have been brought in (or removed to) federal court. Unlike Section 30(A), the provisions implicated in Samantha A.—Section 10(B) and the “early periodic screening, diagnosis, and treatment” (EPSDT) provisions of 42 U.S.C. 1396d—have been found enforceable via Section 1983 civil rights actions. And whether we like it or not, the same rationale that has led the Supreme Court to limit the availability of § 1983 actions is very likely to apply to the Court’s consideration of actions brought under the auspices of the Supremacy Clause theory being tested in Independent Living.

Medicaid is a cooperative program jointly administered and financed by the federal government and the states. States have flexibility in setting provider payment rates but must conform to certain federal requirements. The underlying dispute in the Independent Living case is about whether California’s decision to cut Medicaid rates breached those federal requirements.

Under 42 U.S.C. § 1396a(a)(30)(A) (“Section 30(A),” also known as the “equal access provision”), a state participating in the Medicaid program must:

provide such methods and procedures relating to the utilization of, and the payment for, care and services available under the [state Medicaid] plan . . . as may be necessary to safeguard against unnecessary utilization of such care and services and to assure that payments are consistent with efficiency, economy, and quality of care and are sufficient to enlist enough providers so that care and services are available under the plan at least to the extent that such care and services are available to the general population in the geographic area[.]

(Note: Don’t worry, there’s nothing wrong with your eyes or brain. You’ve just read a tiny portion of Title XIX of the Social Security Act, and it always feels like that.)

Now, the issue on appeal to the Supreme Court is not the substantive issue of whether California’s rate cuts violated the bolded provision, but the threshold issue of whether Medicaid beneficiaries and providers have the right to sue the state to enforce that provision. There’s a bit of a history to this, but the short version is that, at least since its 2002 decision in Gonzaga v. Doe, the Supreme Court has curtailed access to the courts in cases like this by narrowing application of Section 1983 of the Civil Rights Act (42 U.S.C. 1983). It was once, but is no longer, possible to sue state officials via Section 1983 for violations of Medicaid’s equal access provision. So the California plaintiffs in Independent Living had to get creative and find a cause of action elsewhere.

Enter the Supremacy Clause theory. The Ninth Circuit let the plaintiffs’ substantive claims go forward, holding that the state can be sued via a nonstatutory “implied” right of action under the Supremacy Clause of the U.S. Constitution. The idea here is intuitive: there’s gotta be some way to make states conform to the federal statute—federal law being the “supreme law of the land” and all.¹

But that intuitive rationale assumes a false dilemma between private enforcement and none. And while every right deserves a remedy, not every provision of law confers a right. There are good reasons not to read Section 30(A) to establish an enforceable individual right. One is the difficulty of assessing what constitutes compliance—what payment levels are sufficient to ensure access to care and are “consistent with efficiency, economy, and quality”—and, hence, of fashioning an appropriate remedy. The judiciary’s institutional competence to make those assessments is, in a word, suboptimal.² To give just a little flavor to the point, consider that for any rate cut in provider payments, the state saves money which it might then use to finance more Medicaid enrollment or more expansive coverage. (The likelihood that it would in fact do so is beside the point.) How’s a court to decide if the new allocation has worsened access or improved it?

The fundamental obstacle to realizing the promise of equal access in Medicaid has not been simply a failure of enforcement. It is deeper than that. The problem has been that there is no broadly accepted measure of access to care. But as a result of a new report from the Medicaid and CHIP Payment and Access Commission (MACPAC) established in 2009, CMS has now proposed regulations (pdf) which would require states to develop data and methods for evaluating Medicaid beneficiaries’ access to care. The MACPAC report lays out a framework for analyzing access along three dimensions: (1) enrollee needs, (2) availability of care and providers, and (3) utilization of services. Within that broad framework, states would have flexibility to design methods as they see fit. The data and analysis would be publicly available and reviewed by CMS for sufficiency of access whenever the state proposed to amend its State Medicaid Plan in a way that reduced rates or restructured payments.

Medicaid advocates say federal enforcement is not a viable alternative to private suits, because it is hampered by limited means. CMS may withhold federal funds from states who fall out of compliance with Section 30(A), but such withholding only hurts providers and beneficiaries of Medicaid, not the state officials responsible.

However, the new regulatory scheme, if adopted, would transform the whole landscape. The metrics developed will for the first time give CMS the ability to make evidence-based evaluations of state plan amendments and—crucially—to reject amendments that are inconsistent with the mandate of equal access.

The Administration’s brief in Independent Living is not some sort of concession to states who want to cut Medicaid, or a betrayal of the goals of PPACA. As Suzy Khimm suggested in a guest post at Ezra Klein’s blog last week, it should be understood as part of a strategy to consolidate federal regulation and oversight in Medicaid. It seems to me that’s the approach most likely to realize the promise of Medicaid’s equal access provision.

1. There’s a deeper legal rationale to the Supremacy Clause theory—one which explains some mysterious gaps in federal court jurisprudence and which I may post on separately—but it would take us pretty far afield from the Medicaid policy implications of interest here, so I’ll leave it aside for now. But it’s important to note that this is not an established theory recognized by the Supreme Court, and the chances it will be adopted now are slim. Furthermore, it is not the case that a decision in agreement with Katyal’s argument would undo a vibrant regime of private enforcement of Section 30(A). At present there is no regime of private enforcement of 30(A).
2. Prior to Gonzaga, private enforcement of the equal access provision had been the norm, and the federal circuit courts developed their own, sometimes inconsistent standards for evaluating state compliance. For helpful background, see this discussion (pdf) by Boston University law professor Abigail Moncrieff. Also, see Moncrieff’s article on the trend toward federal enforcement.

Via Robert Krulwich.

Reflecting on why barbecue passions sometimes burn hot, Don Taylor posits what I would call the nostalgia theory of barbecue:

[W]hy do many people seem to care so much about barbecue? I believe the answer lies in the economics of pigs, especially in the agrarian South of years past.

[* * *]

I think feelings are so strong about barbecue because feasts around pigs were infused with meaning since they represented shared experiences with loved ones and friends in both good times and bad. So these meals of both celebration and lament, centered around cooking a pig, became culturally meaningful in a way that make me interested in disagreeing with others about the best type of sauce to put on your barbecue. Because these events are important, it makes the way barbecue is prepared and served, important. Even if you are many generations away from a farm, I suspect this is the basic reason that many people have such strong feelings about barbecue.

This is all sociologically interesting, and in the rest of the post Don gives us a nice glimpse into a piece of his heritage, the tradition of “pig pickin’,” and the economics of cull hogs—all of which I enjoyed.

Still, on such a serious matter as this, I feel I must question some aspects of Don’s account, which seems to imply that barbecue fervor has more to do with a cultural context than with the qualities of the food itself. I’ve never been to a pig pickin’, and I doubt that more than a fifth of my recent forebears ever did either. The closest thing to pig pickins in my own experience would have to be something like neighborhood fish fries or maybe Thanksgiving dinner. I like fried fish and roast turkey, but they do not come close to spurring the same level of carnivorous infatuation in me.

It bears mention that, done right, barbecue pork tastes and smells diabolically good. Consequently I’m more inclined toward a biological/chemical theory of barbecue. Indeed I admit to having had in the past a vague notion there must be some sort of dedicated barbecue/bacon receptors or reuptake inhibitors or something in the brain somewhere. Like bacon, barbecue pork punches a powerful combination of buttons: the rich aroma, the fatty, the salty, a touch of the sweet; ideally, the bbq sauce contributes a moderate element of spicy and perhaps tangy but without interfering with the native qualities of the pork proper. And everyone knows there’s something preternaturally addictive about bacon. 43% of respondents in a Canadian survey said that they would rather have bacon than sex. A sizable corner of the internet is devoted to various forms of baconalia. (Btw, here’s The Incidental Economist with a side of bacon.) Instinctively I’d have thought all this points to a biological explanation.

But then this NPR story reminds me that taste is mostly about odor, and that we shouldn’t think too reductively about the effects of odors. Interviewed in the story, cognitive scientist Johan Lundstrom specifically notes a social aspect of the phenomenology of bacon:

Because bacon is one- to two-thirds fat and also has lots of protein, it speaks to our evolutionary quest for calories, Lundstrom says. And since 90 percent of what we taste is really odor, bacon’s aggressive smell delivers a powerful hit to our sense of how good it will taste.

“There’s an intimate connection between odor and emotion, and odor and memory,” Lundstrom says. “When you pair that with the social atmosphere of weekend breakfast and hunger, bacon is in the perfect position to take advantage of how the brain is wired.”

A “weekend breakfast” doesn’t reach the depths of social meaning that Don’s pig pickins carry, but it strikes me that human emotion, memory, and meaning generally are concepts without application outside the social context in which they take shape. Bacon and barbecue alike, acting through the sense of smell, register in these channels and therefore surely do operate, in a nonspecific way, on a level rooted in social consciousness and nostalgia. So I credit Don with adding an important dimension to my understanding of barbecue and why I want it so damn much.

Starry Night (in bacon)

Image via bioephemera.

Did someone say "Ghoughpteighbteau"?

Any sequence of the word “buffalo” of length n>1 is a grammatical sentence of English.

First, let n be odd. We start with n=3: “Buffalo buffalo buffalo”; that is, some buffalo do buffalo buffalo, i.e., some buffalo are buffaloed by buffalo. But of course the buffalo who are buffaloing may themselves be buffaloed by buffalo, so just as some cats that watch mice are chased by dogs, or as we say, cats dogs chase watch mice, buffalo that buffalo buffalo themselves buffalo buffalo, and we can say that buffalo buffalo buffalo buffalo buffalo. Anytime we have the noun buffalo, we can add the relative clause “who are buffaloed by buffalo”, or better, instead of the noun phrase “buffalo who are buffaloed by buffalo”, we may say simply “buffalo that buffalo buffalo”, then add the rest of the sentence, yielding “Buffalo that buffalo buffalo buffalo buffalo”, or even better, “Buffalo buffalo buffalo buffalo buffalo”. To a sentence consisting of n (odd) occurrences of the word, we can produce a sentence of n+2 occurrences.

Thus for any odd n, a sequence of n occurrences is a sentence.

But just as a dog that chases cats is a dog that chases, buffalo that buffalo some buffalo are buffalo that buffalo, so from one of our sequences of an odd number of occurrences, we can lop off the final direct object, producing a sequence of an even number of occurrences that is a grammatical sentence. For any n>1, odd or even, a sequence of n occurrences of “buffalo” is a grammatical English sentence!

Woah. That is simply genius.

1. By everyone, I mean everyone except Karl Smith, who prefers the more colloquial “Fish fish fish fish fish….”