A Reconfigured U.S. Supreme Court: Implications for Health Policy

Issue Brief
  1. Judge Barrett is President Trump’s third Supreme Court nominee, preceded by Justice Neil Gorsuch (replacing Justice Scalia in 2017) and Justice Brett Kavanagh (replacing Justice Kennedy in 2018). (After Justice Scalia’s death in February 2016, President Obama nominated Judge Merrick Garland to fill the open seat, but Senate Republicans refused to consider the nomination, arguing at that time that the vacancy occurred too close to the November Presidential election.)

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  2. In an earlier challenge to the ACA’s constitutionality, National Federation of Independent Business (NFIB) v. Sebelius, a divided Court upheld the individual mandate as valid exercise of Congress’s taxing power. In reaching this decision, Chief Justice Roberts was joined by Justice Ginsburg, along with Justices Breyer, Kagan, and Sotomayor. The dissent, joined by Justices Alito, Kennedy, Scalia, and Thomas, concluded that the mandate was unconstitutional and consequently the entire ACA could no longer stand. The Court’s NFIB decision also found that Congress could not require states to adopt the ACA’s Medicaid expansion, effectively making expansion a state option; only Justices Ginsburg and Sotomayor dissented from that part of the opinion. In a subsequent case, King v. Burwell, Chief Justice Roberts was joined by Justice Ginsburg, along with Justices Kennedy, Breyer, Sotomayor, and Kagan, in upholding an IRS rule making ACA premium subsidies available to individuals purchasing coverage in states that have not established their own Marketplace but instead participate in a federally-run Marketplace.

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  3. Medicaid waivers are popular, with 55 waivers approved across 43 states as of September 1, 2020. Some of these waivers are comprehensive, making broad changes in Medicaid eligibility, benefits and cost-sharing, and provider payments across their programs, while other waivers focus more narrowly on specific services or populations.

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  4. Section 1115 of the Social Security Act allows the Secretary to waive state compliance with certain federal Medicaid requirements if the Secretary determines that the initiative is an “experimental, pilot, or demonstration project” that “is likely to assist in promoting the objectives of the program.”

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