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57 UC Davis L. Rev. 977 (2023-2024)
High Stakes, Bad Odds: Health Laws and the Revived Federalism Revolution

handle is hein.journals/davlr57 and id is 982 raw text is: High Stakes, Bad Odds: Health Laws and the Revived Federalism Revolution Nicole Huberfeld* The Supreme Court's 2021 term produced a remarkable number of blockbuster decisions, nearly hiding an underlying federalism agenda that surfaced in health care, reproductive rights, administrative law, and public health related domains. Health law has been a vehicle for constitutional change before, but the stakes for older laws, most of which rely on states to accomplish national goals, have been raised. The Court has doubled down on interpretive methods that limit governmental power, using formalist tools like clear statement rules that demand specificity and offer little deference to lawmakers or regulators. These rules have constitutional dimensions, including separation of powers and federalism, and have substantive implications. Add the major questions doctrine, which is likely to have deregulatory impact across public laws of all stripes, and a pattern is developing in which the New Roberts Court is centering a formal, separate- spheres vision of federalism that favors states' rights, regardless of states' capacity to wield that power or evidence that they do not. * Copyright © 2023 Nicole Huberfeld. Edward R. Utley Professor of Health Law & Professor of Law, Boston University School of Law & School of Public Health. Sincere thanks to participants in the UCLA Law School Health Law & Policy Workshop, AALS Health Law Workshop, William & Mary Law School Faculty Workshop, Harvard Law School Health Law, Policy, Bioethics & Biotechnology Workshop, and my co-panelists at Health Law Professors Conference for valuable feedback, as well as Professors David Super, Jill Horwitz, Myrisha Lewis, Glenn Cohen, George Annas, Liz McCuskey, and colleagues at the BU Law Faculty Workshop for thoughtful comments. Thanks to Olivia Meadows, Shannon Gonick, and Richard Goyne for excellent research assistance. Thanks always DT and SRHT. 977

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