In a new series of essays, the Penn Program on Regulation’s flagship publication, The Regulatory Review, has invited a diverse group of leading scholars and practitioners to comment on the Supreme Court’s major regulatory decisions from its recently completed term. These essays provide insight and analysis about the impacts of the decisions across a variety of major legal and policy issues, including abortion, climate change, immigration, health care, gun violence, and voting.
Among the contributors to this series are three University of Pennsylvania Carey Law School professors: Professor of Law Allison Hoffman, Presidential Distinguished Professor of Law and Energy Policy Shelley Welton, and Jefferson B. Fordham Professor of Law Tobias Barrington Wolff.
In “A Review of Health Care in the Court,” Hoffman reviews the major health-related decisions of the last term, including those addressing Medicare and Medicaid policies as well as vaccine and other public health mandates.
The following is an excerpt from Hoffman’s essay:
I used to tell health law students that we would read few Supreme Court cases in a class largely comprising common law and state regulation. That statement rings less and less true over time.
Health care spending nears 20 percent of the economy, and health care matters constituted a large share of the U.S. Supreme Court’s docket in the 2021-2022 term. This essay describes a selection of those cases to illustrate how health care prompted litigation and opinions that ranged from inconsequential to transformative. I start by reviewing the cases from this past term having the lowest impact on the U.S. health care system and proceed toward those with the highest impact.
Low-Impact Cases. This session included several cases concerning Medicare, the federal health care program for older people and people with disabilities. Two cases that I followed closely, American Hospital Association (AHA) v. Becerra and Becerra v. Empire Health Foundation, dealt with agency interpretation of Medicare payment rules. Either could have had a significant legal impact, but neither did. Both illustrate the complexity of what the Court faces on health care matters… .
In Wolff’s essay, he argues that the majority’s reasoning in Dobbs v. Jackson Women’s Health “purports to rely on a strict account of historical practice” but instead makes a “radical shift” in constitutional interpretation.
Welton’s essay addresses the Supreme Court’s West Virginia v. U.S. Environmental Protection Agency (EPA) decision that invoked the major questions doctrine to block the EPA from adopting generation-shifting climate regulations.
The Regulatory Review is a daily online publication that provides accessible coverage of regulatory policymaking and enforcement issues across a full range of regulatory topics and from a variety of perspectives.
Launched in 2009 and operating under the guidance of Cary Coglianese, Edward B. Shils Professor of Law and Professor of Political Science, The Review is edited by students at Penn Carey Law. It is part of the overarching teaching, research, and outreach mission of the Penn Program on Regulation, which draws together more than 60 faculty from across the University of Pennsylvania.