By James Romoser
on February 22, 2021
at 9:12 am
Elizabeth Prelogar, now acting Attorney General under President Joe Biden, argues in court in 2016. (Art Lien)
The Justice Department on Monday asked the Supreme Court to overturn next month’s argument about the legality of Medicaid’s work requirements – a policy advocated by former President Donald Trump but now being withdrawn by the Biden administration. However, one of the states that sought to implement the policy quickly rejected the federal government’s request and informed the judges that the dispute was not up for debate and should nevertheless be heard.
If the judges allow the motion, it will be the third dispute in this term to be removed from the judicial record due to a policy change by the new administration. Earlier this month, the court canceled arguments on two immigration issues – Trump’s method of financing his border wall and his policy of staying in Mexico for asylum seekers – after President Joe Biden abandoned the contested policy.
Biden’s senior health officials have also begun scrapping a controversial health initiative that encouraged states to require some Medicaid recipients to work as a prerequisite for maintaining health insurance. States that received Trump administration approval to impose work requirements included Arkansas and New Hampshire, but a district judge and the U.S. District of Columbia Circuit Court of Appeals ruled those permits illegal after finding them would undermine the purpose of the Medicaid program that insures 77 million Americans.
The Trump administration and the two states asked the Supreme Court to look into the matter, and in December judges agreed to do so in two consolidated cases now known as Cochran v Gresham and Arkansas v Gresham. The Trump administration filed its brief defense requests for Medicaid on Jan. 19, the day before Trump left office. The hearing is scheduled for March 29th.
That argument is no longer necessary, Biden’s acting Attorney General Elizabeth Prelogar told judges on Monday in a seven-page motion. The Biden administration has “tentatively determined” that the job requirements do not meet Medicaid’s goals, Prelogar wrote. The Department of Health and Human Services has already revoked a Trump-era letter setting out legal reasons for the policy, and has informed states that it may withdraw country-specific permits. In addition, according to Prelogar, the policy is practically no longer valid for the time being. This is partly due to a COVID-19 relief bill that gave states additional Medicaid funding if they didn’t put in place new restrictions on getting the safety net program in place. Every state in the country accepted the deal.
In light of what she described as “vastly changed circumstances,” Prelogar asked the judges to set aside the argument and overturn the two DC Circuit decisions that are under review in the Supreme Court. The cases should be returned to HHS so that agency officials can reevaluate the Arkansas and New Hampshire proposals, Prelogar said.
Medicaid recipients, questioning the legality of the job requirements, agreed to the Justice Department’s request. New Hampshire “takes no position” on the request, Prelogar told judges.
However, Arkansas filed a brief against the request Monday night. The state found that the Biden government has not officially revoked Medicaid’s Work Requirement Approval Policy – it has only issued a “tentative” judgment that the policy is invalid.
“Preliminary proposals to lift regulatory actions are not challenges or countermeasures,” Arkansas said in its letter.
The dispute, the state argued, therefore remains a living controversy and continues to raise an important legal issue for the Supreme Court to resolve: namely, the extent of the federal government’s power to allow states to conduct experimental measures in Medicaid.