ACS is pleased to distribute an Issue Brief by Simon Lazarus and Harper Jean Tobin, attorneys with the National Senior Citizens Law Center, entitled, “The Supreme Court’s Two-Front War on the Safety Net: A Cautionary Tale for Health Care Reformers.” In this Issue Brief, Lazarus and Tobin argue that over the last half-century, critical components of the nation’s health care safety net have been seriously undermined by the Supreme Court. The authors contend that through a contradictory approach to the boundaries between federal and state power, the conservative bloc on the Court has sought to constrain Congress’ power to enact progressive legislation and citizens’ ability to enforce federal statutory rights in court, while at the same time using the preemption doctrine to strike down state protections. The authors see in these antithetical doctrinal trends a “transparently ideological, deregulatory agenda.”

Lazarus and Tobin argue that in effect, conservative judges are “repealing from the bench” two federal health care laws: Medicaid, the nation’s principal low-income health insurance program, and the Employee Retirement Income Security Act of 1974 (ERISA), the law regulating private, employer-sponsored health plans. According to the authors, the original purposes of both laws are being thwarted – in the case of Medicaid, by the Court’s application of progressively stricter limitations on enforcement of federal mandates, and in the case of ERISA, by its erosion of consumer remedies under the law and holdings that ERISA preempts substantially all claims under state laws by employees seeking redress for wrongful denials of treatment. They conclude that federal judges have “brushed aside principle and consistency – embracing ‘states rights’ to curb disfavored federal laws like Medicaid, while pushing the envelope of ‘federal supremacy’ when targeting state laws such as common-law protections for health insurance beneficiaries.”

To address these developments, the authors urge that Congress enact legislation to reverse unsupportable Supreme Court decisions, and that Congress, the press, and others voice sustained criticism of such rulings in the hope that the Court itself will take heed. They also recommend that as future reforms are advanced, Congress take care to ensure that statutory text clearly spells out the intention to benefit those in need and to provide remedies to hold private or governmental entities accountable for compliance with statutory requirements, as well as the intended relationship of new federal laws to state statutes or state common law safeguards. Finally, the authors urge the Obama Administration to appoint federal judges who will faithfully follow laws like Medicaid and ERISA and ensure that Americans receive the benefits that Congress intended to guarantee.