What should Biden do about Medicaid work requirements?

I’ve got a new article out at The Atlantic digging into that surprisingly thorny question. At stake here is whether the Biden team can move quickly enough to forestall the Supreme Court from deciding two pending cases involving work requirements in Arkansas and New Hampshire. It’ll be tricky, in part because of some last-minute shenanigans to protect work requirements from reversal:

On January 4, … the Trump administration announced that it was changing the rules. In a seemingly innocuous letter to state Medicaid directors, the director of the Centers for Medicare and Medicaid Services, Seema Verma, offered “additional details of the process” for withdrawing waivers. One of those new details is that no withdrawal can take effect for at least nine months.

The change is a brazen, cynical attempt to protect work requirements long enough for the Supreme Court to rule on them. And while it’s dastardly, it’s also clever. When the states agree to the terms of Verma’s letter—and Republican-controlled states certainly will, if they haven’t already—its terms arguably become enforceable as a kind of intergovernmental contract. I say “arguably” because the letter itself may be legally defective, as two Democratic congressional leaders have already argued in an angry missive to Verma. But the possibility that the courts might treat it as binding means that it’d be risky for the Biden team to withdraw the waivers before nine months are up.

The Biden administration still has options, however—and here’s where the creative lawyering comes in.

Read the rest here. I’ll add that it speaks well of the The Atlantic that they were willing to run a piece digging into the nitty gritty of administrative law. It’s important stuff, but complicated.


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