Earlier today, the Biden administration filed a motion asking the Supreme Court to get rid of the two work requirement cases that are now pending. I have thoughts! supremecourt.gov/DocketPDF/20/2…
To bring you up to speed: New Hampshire and Arkansas received waivers from HHS allowing them to require some Medicaid beneficiaries to work a certain number of hours a month or lose their coverage.
Some beneficiaries challenged those waivers on the ground that they didn't advance the objective of the Medicaid statute, which is to provide health coverage to poor people. The D.C. Circuit agreed, putting the kaibosh on work requirements in every state.
The Trump administration, New Hampshire, and Arkansas all asked the Supreme Court to review the case. The Court agreed and scheduled oral argument for March.

But then Biden won the election.
Not long after, the Biden Team announced -- unsurprisingly -- that it was going to withdraw the waivers. In the meantime, Arkansas said that it wasn't going to ask to reimpose work requirements when its waiver lapses this year.
As matters stand, no state has work requirements in place. And under the CARES Act, no state that accepted enhanced Medicaid money is allowed to kick anyone off the program.

So work requirements won't ever take effect in any state.
If you think it'd be kinda silly for the Supreme Court to hear a case about work requirements that will exist in precisely zero states, well, you'd be right.

Which is why Team Biden has asked the Supreme Court to return these cases to the lower courts without deciding anything.
Arkansas has filed a response -- interestingly, New Hampshire took no position on the motion -- saying that it's VERY VERY IMPORTANT to hear the case anyway, even though it will not actually impose work requirements on its Medicaid beneficiaries. supremecourt.gov/DocketPDF/20/2…
But why? Sure, the case isn't technically moot because Arkansas still has a piece of paper that says "waiver" on it. That waiver hasn't yet been withdrawn.

But give me a napkin. I'll write "waiver" on the top of it. It'll have precisely the same effect as Arkansas's waiver.
Arkansas says, no, wait! It plans on challenging the legality of the (future) withdrawal of its waiver, and if it wins that challenge, the underlying validity of the waiver will present a live issue.

That's wrong, but whatever.
The key point is that its waiver, whether the Biden administration acts legally or not in withdrawing it, expires of its own force at the end of this year. So it really, truly will be moot.
The big fight here isn't over whether the Supreme Court should hear the case. It clearly shouldn't. Why resolve a difficult statutory question with serious implications for future Medicaid waivers when there's no world in which it'll actually matter on the ground to the parties?
The big fight, instead, is whether the Supreme Court ought to vacate the D.C. Circuit's decision. That turns out to be a tricky question involving when changed circumstances warrant blowing up a lower court decision that the Supreme Court never had a chance to review.
For my appellate tweeps, it's a Munsingwear/Bancorp-style issue, albeit in an unusual posture given that the case isn't moot yet but will be moot soon.
I don't know what the right answer there is -- I'll have to think on it, though my sense is that the courts are generally more apt to vacate when the government decides to change its approach on appeal than when private parties do the same thing.
Anyway, that's all I've got for now. The moral is that the Supreme Court should drop these cases like a hot potato -- and it probably will. I'm less sure what it'll do about the lower court decisions. /fin

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More from @nicholas_bagley

23 Feb
Earlier today, the Michigan Senate's education committee held a hearing on the impact of school closures on Michigan's kids. As a parent of two kids in Ann Arbor public schools, I was honored to testify (I show up at the end, 1:21.47). misenate.viebit.com/player.php?has…
The key point that I made -- and the one that I hope landed -- is that the Michigan legislature has to make a choice about how much discretion school districts should be given to deal with COVID for the 2021 to 2022 school year.
Especially after teachers and staff are vaccinated, there's no excuse not to go back to five days of face-to-face instruction. But I have no confidence at this point that district leadership and the school board share that belief.
Read 6 tweets
18 Feb
At midnight, after hours of confusing back and forth, the Ann Arbor School Board voted to modify the district's reopening plan so that, for most kids, schools wouldn't reopen for in-person learning *at all.* mlive.com/news/ann-arbor…
The Board did so after hearing hours of comments from anguished parents who are desperate to get their kids back into the classroom. The Board did so without even *surveying* parents to find out what they thought.
The refusal even to pretend to take seriously the concerns of parents who have been stretched past the breaking point is galling. The dereliction of responsibility to our kids is tragic.
Read 12 tweets
16 Feb
So I woke up today to learn that the @A2SchoolsSuper has called a snow day. After a four-day weekend. And with tomorrow an "asynchronous" day (i.e., no real school again).

Which might sound reasonable after a storm, except -- there IS no in-person school in Ann Arbor.
In her email, @A2SchoolsSuper said that COVID-19 means "we have missed many of the simple joys that make our time together memorable."

Simple joys? You mean, like seeing friends? Actually learning in a classroom? Heck, like learning at all?
Or having your parents not be quivering messes because they haven't had their kids in school for nearly a year and are at the ends of their ropes? Or not waking up in the middle of the night worrying if the district is ALSO going to limit or suspend in-person school for the fall?
Read 10 tweets
13 Feb
News! The Biden administration has informed states *both* that it's withdrawing Medicaid work requirement waivers and* that it won't follow a letter from the outgoing administration saying that no waivers could be withdrawn for at least nine months. medicaid.gov/medicaid/secti…
This is a big deal, and not only because the Biden administration is ending work requirements. We knew that was coming. It's a big deal because the Biden administration is signaling that it's going to move quickly to withdraw the waivers -- sooner than nine months.
Why? Because the Supreme Court is poised to hear a case about the legality of Medicaid work requirements. Lower courts have said they're not. But if the Supreme Court says they're legal, the next Republican administration could quickly reimpose them.
Read 9 tweets
28 Jan
Did the Pause to Save Lives here in Michigan actually, y’know, save lives? The counterfactual is tricky, but modeling from @MarisaEisenberg at @UMich suggests that it did. news.umich.edu/strict-public-…
Just how many lives? "[B]etween Nov. 15 and Jan. 8, about 109,000 cases were prevented. Based on Michigan’s rate of fatality of 2.6%, that translates to 2,800 lives saved." That's an *enormous* effect for an intervention that lasted less than two months.
One way to get a sense of the effectiveness of Michigan's response is to compare it to other midwestern states, which did not tighten up over the holidays.
Read 6 tweets
27 Jan
I think @BlakeProf's point is well-taken. But it gets at a deep problem with public discourse around law.

@jdmortenson and I have heard privately that we have shaken some originalists from their priors. Which is great!
But there's not much incentive for them to go public with their views. Why bother? Nick Parrillo and @jdmortenson and me have made the argument. Plus, doing so might alienate friends, mentors, and people who might think about giving you a job the next time the wheel spins.
That's a problem on both the left and the right. I can say from personal experience that the shit you get from your own team for bucking the party line is way worse than the shit you get from the other team, which is already priced in.
Read 9 tweets

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