The Hill: Why work? It’s a question the Supreme Court will answer

Jan 24, 2021 | Press Release

By Former Supreme Court Justice Daniel Kelly

Can Wisconsin require that able-bodied and childless adults work, or engage in work-related activities, as a condition of receiving BadgerCare benefits? The U.S. Supreme Court likely will answer that question when it decides Azar v. Gresham later this term.

The specific issue presented by that case might appear to be, at least initially, dry and technical:  Whether a work requirement would “assist in promoting the objectives” of the Medicaid program. Just under the surface, however, is a contest between the richness of local character on the one hand, and on the other a cramped and sterile interpretation of federal law.

As I read through the Azar case, I couldn’t help but reflect on Wisconsin’s character in particular.  When I came here as a young college student almost 40 years ago, I immediately found Wisconsinites to be the people of an open hand and generous heart. Over the ensuing years, I grew to love their quiet practicality and commitment to hard work. Because public policy is downstream of culture, it was perhaps inevitable that BadgerCare would reflect a blend of these characteristics.

Specifically, I have in mind the terms upon which we make BadgerCare benefits available to childless, able-bodied, low-income adults. Federal law does not require that Wisconsin cover this population; in fact, the state had to affirmatively seek a waiver from the U.S. Department of Health and Human Services (HHS) in 2009 to do so. Just a few years ago, Wisconsin received a further waiver allowing it to adopt a work requirement for adults in this population between the ages of 19 and 50 as a condition of receiving BadgerCare benefits. The state has yet to implement the work requirement, but there are no remaining barriers to doing so.

This is a remarkably adept synthesis of Wisconsin’s generosity of spirit with the practical realization that work promotes human flourishing … as well as the ability to obtain a health insurance policy not provided at taxpayer expense. In approving the waiver, the HHS secretary said that “[b]y helping people to transition to commercial coverage, [the work requirement] will help Wisconsin stretch its limited Medicaid resources and will thus promote Medicaid’s purpose of helping enable states to furnish medical assistance.” Just so.

All of this is at risk, however, because of a federal court’s stilted understanding of the Medicaid program. In the Azar case, Charles Gresham challenged an Arkansas work requirement similar to the one approved for Wisconsin, claiming it did not promote Medicaid objectives. The Court of Appeals for the D.C. Circuit agreed, concluding that the primary purpose of the program — and therefore the only objective a state may pursue — is increasing the number of enrollees in taxpayer-funded health insurance policies. It based its conclusion, at least in part, on a First Circuit Court of Appeals case that said “the primary purpose of Medicaid is to enable states to provide medical services to those whose ‘income and resources are insufficient to meet the costs of necessary medical services.’”

But it doesn’t take more than a moment to figure out that increasing enrollment in a state’s Medicaid program is not the same as enabling states to provide medical services to those in need.  The gulf that separates the two is the reality of limited resources. A dollar spent on Mr. Smith’s medical care is a dollar not available to spend on Ms. Brown’s care. Conditioning Mr. Smith’s benefits on becoming employed (or at least working towards that goal) means he eventually may be able to buy his own medical insurance policy. The result will be freed-up resources to care for those who are unable to work or otherwise provide for their own medical care. And that obviously promotes Medicaid’s objectives.

The D.C. Circuit’s reasoning makes sense only in a world in which a government may spend without end. That appears to be the operative thesis in Washington. But out here in the states, we know there is a limit. Wisconsinites are generous, but we work for what we have. Let’s hope the U.S. Supreme Court adopts a little Wisconsin sensibility when it hears the Azar case.

Daniel Kelly was appointed as a justice to the Wisconsin Supreme Court by Gov. Scott Walker in 2016 and served until July 31, 2020. He is the senior fellow in constitutional governance at the Institute for Reforming Government.