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93 B.U. L. Rev. 1 (2013)
Plunging into Endless Difficulties: Medicaid and Coercion in National Federation of Independent Business v. Sebelius

handle is hein.journals/bulr93 and id is 7 raw text is: ARTICLES PLUNGING INTO ENDLESS DIFFICULTIES: MEDICAID AND COERCION IN NATIONAL FEDERATION OF INDEPENDENT BUSINESS V. SEBELIUS NICOLE HUBERFELD,* ELIZABETH WEEKS LEONARD' & KEVIN OUTTERSON* INTRODUCTION .................................................... 2 1. MEDICAID ExPANSION UNDER THE ACA.......................... 9 A. The ACA's Path to Expanding Coverage ........ ......... 10 B. The Medicaid Program ............................... 13 1. Medicaid and the Deserving Poor ..... ................... 13 2. The Scope of Medicaid Benefits and Coverage Prior to the ACA. ............................ ......... 17 C. Previous Medicaid Expansions .............. ......... 20 D. The A CA Medicaid Expansion ............... ......... 25 II. NATIONAL FEDERATION OF INDEPENDENT BUSINESS V. SEBELIUS ........... 29 A. Florida v. United States Department of Health and Human Services .......................................... 31 B. The States 'Merits Brief ............................... 32 C. The United States'Merits Brief.............. ......... 34 D. The NFIB Opinions .................... ............... 36 1. The Roberts Plurality........................... 36 * Gallion & Baker Professor of Law, University of Kentucky College of Law. Associate Professor, University of Georgia School of Law. Associate Professor, Boston University School of Law. The authors were the Counsel of Record and drafting authors of several amicus briefs filed before the Court in the Healthcare Cases, including a brief supporting the constitutionality of Medicaid filed on behalf of health law and policy scholars. We thank our co-counsel from those briefs for their many contributions: Sara Rosenbaum, Laura Hermer, Sidney Watson, Wendy Parmet, Lorianne Sainsbury-Wong, and Abigail Moncrieff. We also thank our colleagues for their willingness to read and comment on this Article: Tim Jost, Sam Bagenstos, Sara Rosenbaum, Scott Burris, Dan Coenen, Glenn Cohen, Rob Mikos, the Boston University School of Law Faculty Workshop, and the participants at the Loyola Chicago Constitutional Law Colloquium. Thanks to Shannon Leahy, Kathryn Swany, and Dennis Vann for diligent research assistance. We were assisted on the Medicaid brief by Boston University law students Amrit Gupta and Valerie Moore and Boston College law students Frederick Thide and Max Bauer. 1

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