Post-reform Medicaid before the court: discordant advocacy reflects conflicting attitudes.

Abstract

This essay explores the conflicting positions taken by the United States in its Medicaid-related briefs before the Supreme Court this October 2011 Term. In Douglas v. Independent Living Center, the United States articulated a deferential stance toward the states, a position consistent with longstanding states' rights concerns in the Medicaid program. On the other hand, the federal government has advocated a very broad view of federal authority under the spending power to modify and expand Medicaid in Florida v. Health and Human Services. Congress has acted in ways that are contradictory regarding Medicaid throughout the program's history, and those conflicting attitudes have been accentuated by the executive branch's dissonant litigation strategies this term. This essay posits that the Court could minimize confusion with narrow holdings in both Douglas and Florida v. HHS so as to allow Congress and HHS latitude to resolve their conflicting attitudes toward Medicaid as well as the intricacies of conditional spending.