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Saint Louis University Journal of Health Law & Policy

Document Type

Article

Abstract

America is aging. From 2019 to 2060, the total population of Americans over sixty-five will grow from fifty-four million to ninety-five million. Of all Americans, sixteen percent were aged sixty-five and older in 2019; nearly twenty-two percent are projected to be in this age group by 2040. This shift will put unprecedented pressure on the Medicare program. Its enrollment is already in the midst of an unparalleled boom, growing from forty-eight million in 2010 to eighty-six million by just 2035. As it grows in importance and size, the future of Medicare will be dominated by two competing pressures.

First, Medicare has become the primary regulatory vehicle for the federal government and the executive branch in American health care. Its importance as an engine of regulation is highlighted by political gridlock and Medicare’s reach. Congressional inaction continues to stymie common-sense health policy development. And, theoretically, one federal dollar—flowing into a hospital’s revenues or a provider’s pocket—unlocks the extensive regulatory pressure of the Medicare program.

Second, the countervailing force is a global deregulatory regime seeking to roll back the administrative state. This regime is most specifically embodied by a newly emboldened Supreme Court, which has signaled hostility to the power and reach of federal agencies. As Medicare becomes more central—and, as it becomes more conspicuous as the primary regulatory vehicle in American health care—it becomes a target of this larger deregulatory project. A recent example of both Medicare’s use as a regulatory engine and the hostility to its regulatory power is the Centers for Medicare and Medicaid Services’ (“CMS’s”) recent COVID-19 vaccination mandate for health care workers, and the resulting litigation in federal courts.

This essay examines this tension by highlighting the judiciary’s treatment of President Biden’s vaccination mandate policy while summarizing Medicare’s unique position in health care law and policy. These fights between a robust Medicare program and a global deregulatory effort—perhaps dismissed as academic—will have a real impact on the health and health care of millions of Americans. Regardless of the ultimate resolution of these fights over power and policy, Medicare will serve as the location for turbulent fights over law and power, policy, and values for years to come.

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