Originally uploaded at SSRN.


This paper provides an update and reanalysis of my previously published article, Rhetorical Federalism: The Value of State-Based Dissent to Federal Health Reform, 93 Hofstra Law Review 111 (2010). In Rhetorical Federalism, I made an affirmative case for the widespread trend of state resistance to the then-recently enacted Patient Protection and Affordable Care Act of 2010 (ACA). Before and immediately after ACA’s enactment, a significant number of states engaged in various forms of objection to the new federal Act, including but not limited to lawsuits challenging the constitutionality of the individual insurance mandate. My article focused on five targets of state resistance: Medicaid expansion, high-risk insurance pools, health insurance exchanges, federal insurance market regulations, and the individual mandate. I identified reasons why state-based dissent should not be disregarded simply as Tea Party antics but instead should be considered valuable to the health care decisionmaking process and federal-state relations. For this Symposium, I revisit the five previously identified targets of state resistance to Patient Protection and Affordable Care Act (ACA) implementation, providing a one-year score-card of states’ successes and failures on those fronts. I also discuss states’ new strategies, including interstate compacts, Medicaid waivers, ACA § 1332 waivers, implementation moratoria, return of federal grants, and Tenth Amendment standing claims. In conclusion, I suggest that states’ federalism rhetoric, while still not always well-grounded in law, has better traction than I and other commentators predicted.