The States as Laboratories of Federalism: The Novel and Innovative Ventures of the California Attorney General into Healthcare and Competition-Related Issues

Starting off from the vantage point of Justice Brandeis’ famous paean to federalism and state experimentation in his dissenting opinion in New State Ice Co. v. Liebmann, 285 U.S. 262 (1932), this article explains the systematic multi-pronged approach of the California Attorney General to addressing challenges in healthcare access, affordability, quality, and equity in California. That approach includes initiating litigation such as the landmark Sutter case, that resulted in a settlement in December of 2019, multiple state legislative initiatives—including last year’s pay-for-delay law that just withstood a challenge in the United States Court of Appeal in the Ninth Circuit, and the establishment of the new Healthcare Rights and Access Section. That Section will be responsible for all healthcare-related matters that involve the investigation and filing of lawsuits on behalf of the public interest to protect healthcare equity and access, including all antitrust matters that arise in the healthcare space.

By Emilio E. Varanini¹

I. INTRODUCTION

In his dissent in New States Ice Co. v. Liebmann, Justice Brandeis made the following powerful point: “It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”² Nowhere should this point hold more true than healthcare. Healthcare has been recognized