Online

Judicial Review of Emergency Powers in Banking and Financial Regulation

Banking and finance are arcane industries that often elude popular understanding, so courts, Congress, and the American public have largely delegated their regulation to federal agencies with considerable decision-making autonomy, affecting trillions of public and private dollars. Some regulatory powers, however, have the potential to destabilize the financial system. Yet for forty years, courts deferred to these agencies under the Chevron doctrine.

Over the past three years, the Supreme Court of the United States has generally curtailed the administrative state’s role in policy-making by overturning Chevron and enunciating the major questions doctrine. Deference to agencies plays a special role in banking and financial regulation as open-ended emergency provisions facilitate crisis response. But on several occasions since the 2008 financial crisis, agencies have misused these powers by invoking them routinely or when an emergency is not really afoot. If these regulators “cry wolf” too often, they create perverse incentives that heighten the risk of financial turmoil.

This Essay argues that the Court’s recent skepticism toward the administrative state is a positive development for banking and financial regulation. While courts should not totally abrogate regulatory discretion in this field of law, a stronger threat of judicial review could encourage agencies to reserve emergency powers for genuine crises. This will deter them from “crying wolf” to abuse their emergency powers, promote stability and transparency in regulatory decision-making, and better prepare the country for future financial crises.

Introduction

“Let us control the money of a country and we care not who makes its laws.”1 1.Investigation of the Money Trust: Hearings on H.R. 314 and H.R. 356 Before the H. Comm. on Rules, 62d Cong. 40 (1912) (statement of Mr. T. Cushing Daniel, author of “Daniel on Real Money”). The maxim is frequently—probably apocryphally—attributed to Mayer Amschel Rothschild (1744–1812), founder of the Rothschild banking dynasty. Id. But its sentiment—that money is more powerful than even law itself—rings true today. In 2011, just shy of one hundred years since it was spoken in a congressional hearing on regulating Wall Street, see id., a variation of the maxim appeared scrawled on a cardboard sign at the Occupy Wall Street protest. Photograph of Cardboard Sign (OWS_190b), in N.Y. Hist. Soc’y Shelby White & Leon Levy Digit. Libr., Occupy Wall Street Signs and Posters (2011), https://digitalc‌ollections.nyhistory.org/islandora/object/nyhs%3A169816 [https://perma.cc/NQA6-DRBT]. ↑Show More

The Roberts Court’s scrutiny of the administrative state escalated in June 2024 when it overturned the forty-year-old doctrine of Chevron deference2 2.Amy Howe, Supreme Court Strikes Down Chevron, Curtailing Power of Federal Agencies, SCOTUSblog (June 28, 2024, 12:37 PM), https://www.scotusblog.com/2024/06/su‌preme-court-strikes-down-chevron-curtailing-power-of-federal-agencies/ [https://perma.cc/Y‌UF7-FASL]. “Chevron deference” refers to the Supreme Court’s 1984 decision to defer to agencies’ interpretations of ambiguous statutes. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984), overruled by Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244 (2024). Some commentators predict the Court may soon go further in this direction by holding that broad delegations to agencies are altogether unconstitutional. Cydney Posner, Will SCOTUS Revive the Nondelegation Doctrine?, Harv. L. Sch. F. on Corp. Governance (Dec. 19, 2024), https://corpgov.law.harvard.edu/2024/12/19/will-scotus-revive-the-nondeleg‌ation-doctrine/ [https://perma.cc/RU5U-UQX7].Show Morein Loper Bright Enterprises v. Raimondo.3 3.Loper Bright, 144 S. Ct. 2244.Show MoreThis decision reaffirmed the Court’s skeptical stance on executive agencies in line with its decisions in Biden v. Nebraska4 4.143 S. Ct. 2355, 2368 (2023) (characterizing the Secretary of Education’s interpretation of the HEROES Act as an attempt to “rewrite that statute from the ground up”).Show Morein 2023 and West Virginia v. EPA5 5.142 S. Ct. 2587, 2614 (2022) (rejecting the Environmental Protection Agency’s “newly uncovered” interpretation that would have “conveniently enabled it to enact a program” that Congress had rejected).Show Morethe year before. Many legal commentators join Justice Kagan, who wrote a foreboding dissent in Loper Bright, in predicting that Chevron’s overturn will disrupt the legal system for the worse.6 6.See, e.g., Michael M. Epstein, Agency Deference After Loper: Expertise as a Casualty of a War Against the “Administrative State,” 89 Brook. L. Rev. 871 (2024); see also Loper Bright, 144 S. Ct. at 2295 (Kagan, J., dissenting) (“In one fell swoop, the majority today gives itself exclusive power over every open issue—no matter how expertise-driven or policy-laden—involving the meaning of regulatory law.”).Show MoreAnd they may well be right. But for at least one area of the law—banking and financial regulation—Chevron’s demise is a positive development.7 7.For an argument that Chevron helped cause the 2008 financial crisis by letting regulators expand “the business of banking,” see Todd Phillips, Chevron and Banking Law: What’s Good for the Goose Isn’t Good for the Gander, Yale J. on Regul.: Notice & Comment (May 2, 2024), https://www.yalejreg.com/nc/chevron-and-banking-law-whats-good-for-the-goose-isnt-good‌-for-the-gander/ [https://perma.cc/G7KN-PJJW].Show More

Principal regulators in this field include the Federal Reserve (“Fed”), the Federal Deposit Insurance Corporation (“FDIC” or “Corporation”), and the Financial Stability Oversight Council (“FSOC” or “Council”). Congress granted these agencies elaborate statutory mandates aimed at safeguarding the stability of the United States financial system. Since the 2008 financial crisis, however, regulators have exploited broad provisions buried in these mandates to take risky and unprecedented action. But the Supreme Court’s new stance on the administrative state may halt that trend.

This Essay argues that stronger judicial review of banking and financial regulators will make the financial system sounder by encouraging wiser use of regulatory tools. Part I discusses why excessive agency involvement poses risks to the financial system, primarily by creating moral hazard. Part II covers three statutory provisions regulators questionably invoked during and after the 2008 financial crisis to justify more frequent intervention. Part III examines some judicial levers the Supreme Court has pulled to limit agency discretion in other contexts, and it predicts how and when the Court may use them to check banking and financial regulators in the future.

  1.  Investigation of the Money Trust: Hearings on H.R. 314 and H.R. 356 Before the H. Comm. on Rules, 62d Cong. 40 (1912) (statement of Mr. T. Cushing Daniel, author of “Daniel on Real Money”). The maxim is frequently—probably apocryphally—attributed to Mayer Amschel Rothschild (1744–1812), founder of the Rothschild banking dynasty. Id. But its sentiment—that money is more powerful than even law itself—rings true today. In 2011, just shy of one hundred years since it was spoken in a congressional hearing on regulating Wall Street, see id., a variation of the maxim appeared scrawled on a cardboard sign at the Occupy Wall Street protest. Photograph of Cardboard Sign (OWS_190b), in N.Y. Hist. Soc’y Shelby White & Leon Levy Digit. Libr., Occupy Wall Street Signs and Posters (2011), https://digitalc‌ollections.nyhistory.org/islandora/object/nyhs%3A169816 [https://perma.cc/NQA6-DRBT]. ↑
  2.  Amy Howe, Supreme Court Strikes Down Chevron, Curtailing Power of Federal Agencies, SCOTUSblog (June 28, 2024, 12:37 PM), https://www.scotusblog.com/2024/06/su‌preme-court-strikes-down-chevron-curtailing-power-of-federal-agencies/ [https://perma.cc/Y‌UF7-FASL]. “Chevron deference” refers to the Supreme Court’s 1984 decision to defer to agencies’ interpretations of ambiguous statutes. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984), overruled by Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244 (2024). Some commentators predict the Court may soon go further in this direction by holding that broad delegations to agencies are altogether unconstitutional. Cydney Posner, Will SCOTUS Revive the Nondelegation Doctrine?, Harv. L. Sch. F. on Corp. Governance (Dec. 19, 2024), https://corpgov.law.harvard.edu/2024/12/19/will-scotus-revive-the-nondeleg‌ation-doctrine/ [https://perma.cc/RU5U-UQX7]. ↑
  3.  Loper Bright, 144 S. Ct. 2244. ↑
  4.  143 S. Ct. 2355, 2368 (2023) (characterizing the Secretary of Education’s interpretation of the HEROES Act as an attempt to “rewrite that statute from the ground up”). ↑
  5.  142 S. Ct. 2587, 2614 (2022) (rejecting the Environmental Protection Agency’s “newly uncovered” interpretation that would have “conveniently enabled it to enact a program” that Congress had rejected). ↑
  6.  See, e.g., Michael M. Epstein, Agency Deference After Loper: Expertise as a Casualty of a War Against the “Administrative State,” 89 Brook. L. Rev. 871 (2024); see also Loper Bright, 144 S. Ct. at 2295 (Kagan, J., dissenting) (“In one fell swoop, the majority today gives itself exclusive power over every open issue—no matter how expertise-driven or policy-laden—involving the meaning of regulatory law.”). ↑

  7.  For an argument that Chevron helped cause the 2008 financial crisis by letting regulators expand “the business of banking,” see Todd Phillips, Chevron and Banking Law: What’s Good for the Goose Isn’t Good for the Gander, Yale J. on Regul.: Notice & Comment (May 2, 2024), https://www.yalejreg.com/nc/chevron-and-banking-law-whats-good-for-the-goose-isnt-good‌-for-the-gander/ [https://perma.cc/G7KN-PJJW]. ↑

Victory: How a Lawyer, a Minister, and Twenty Professional Football Players Helped End Segregation in Virginia and Professional Sports

Introduction

As Chapman Law Dean Matthew Parlow has noted, “[a]thletes in professional sports have long sought to use their platforms as celebrities to bring greater societal awareness to issues of social justice and racial inequality.”1 1.Matthew J. Parlow, Racial Protest and Racial Progress in Professional Sports, 31 S. Cal. Rev. L. & Soc. Just. 239, 253 (2022).Show MoreOne of the clearest examples is the 2020 NBA player boycott following the shooting death of Jacob Blake by police in Kenosha, Wisconsin, a boycott that spread to several other professional sports organizations.2 2.Id. at 242–43; Marc Stein, Led by N.B.A., Boycotts Disrupt Pro Sports in Wake of Blake Shooting, N.Y. Times (Sept. 4, 2020), https://www.nytimes.com/2020/08/26/sports/basketba‌ll/nba-boycott-bucks-magic-blake-shooting.html.Show MoreMultiple media outlets covering the 2020 boycott referenced an event that garnered national attention in October 1961, when several members of the Boston Celtics and St. Louis Hawks refused to play in a preseason NBA game in response to discrimination in a hotel in Lexington, Kentucky.3 3.See, e.g., Des Bieler, Bill Russell Led an NBA Boycott in 1961. Now He’s Saluting Others for “Getting in Good Trouble,” Wash. Post (Aug. 27, 2020), https://www.washingtonpost.co‌m/sports/2020/08/27/bill-russell-nba-boycott/.Show MoreSome of the stories referred to this incident as the first professional athlete boycott related to a civil rights issue.4 4.Dustin Jones, As a Racial Justice Activist, NBA Great Bill Russell Was a Legend Off the Court, NPR (Aug. 21, 2022, 5:00 AM), https://www.npr.org/2022/08/01/1114795613/racial-j‌ustice-pioneer-nba-bill-russell [https://perma.cc/E3TX-99XE]; Darren Hartwell, Bill Russell’s Civil Rights Legacy Rivals His On-Court Accolades, NBC Sports Bos. (Feb. 7, 2023, 8:51 AM), https://www.nbcsportsboston.com/nba/boston-celtics/bill-russells-civil-righ‌ts-legacy-rivals-his-on-court-accolades/284760/ [https://perma.cc/3KSD-V3CU].Show More

Just two months earlier, however, another group of professional athletes—this time, a group of football players—had agreed to boycott a professional athletic event in protest of racial discrimination in Roanoke, Virginia. The athletes did so at the behest of a local minister, who was a prominent civil rights activist. At the same time, a local civil rights lawyer was pursuing litigation to challenge the discrimination at issue, specifically enforcement of a Virginia law that prohibited integrated seating at public events, including professional sporting events. But that summer, the lawyer, the minister, and twenty football players would use a preseason NFL game to bring attention to the injustice of Virginia’s law and challenge its constitutionality. In the process, they would play an important role in helping to end segregationist practices in the NFL, establishing precedent for future racial protests by professional athletes and helping to bring about an end to Virginia’s discriminatory law.

This Essay tells the story of this largely forgotten event from the summer of 1961. The event represents a success story in the history of the civil right movement and illustrates how both legal and extra-legal methods were necessary to achieve the goals of the movement.5 5.See William P. Quigley, Ten Ways of Looking at Movement Lawyering, 5 How. Hum. & C.R.L. Rev. 23, 34 (2020) (stating that social justice lawyers “are always part of a team that mostly includes non-lawyers” and rejecting the assertion “that lawyers led and shaped the civil rights movement”).Show MoreMuch of the focus on how the civil rights movement brought about change in the law focuses on the role that lawyers played.6 6.See generally Jack Greenberg, Crusaders in the Courts: How a Dedicated Band of Lawyers Fought for the Civil Rights Revolution (1994) (chronicling the history of the NAACP Legal Defense Fund during the civil rights movement).Show MoreBut the history of civil rights advancement is a history not just of how lawyers helped change the law and society, but how non-lawyer organizers and activists were equal partners in the undertaking.7 7.See Tomiko Brown-Nagin, Elites, Social Movements, and the Law: The Case of Affirmative Action, 105 Colum. L. Rev. 1436, 1522–23 (2005) (“[T]he moral suasion of participatory democratic groups of nonlawyers, and typically nonelites, was integral to law’s movement from a Jim Crow regime to a constitutional order in which formal equality was the norm.”). See generally Jennifer Gordon, The Lawyer Is Not the Protagonist: Community Campaigns, Law, and Social Change, 95 Calif. L. Rev. 2133 (2007) (describing the role of lawyers in supporting community-led campaigns for justice); Ascanio Piomelli, Appreciating Collaborative Lawyering, 6 Clinical L. Rev. 427 (2000) (advocating for an approach of collaborative lawyering).Show More

This Essay focuses on how the lawyer at the center of the boycott in Roanoke, along with those who came before and after him, used the legal process to help change the law as well as societal norms regarding racial segregation. At the same time, the Essay explores how the non-lawyers involved in this episode played a vital and complementary role in the desegregation effort. In short, the Essay explores how Virginia’s segregation laws were toppled through a combination of legal action and activism. Most importantly, the Essay memorializes the forgotten role that these individuals played in helping to desegregate professional sports and in laying the foundation for future protests by professional athletes.

  1.  Matthew J. Parlow, Racial Protest and Racial Progress in Professional Sports, 31 S. Cal. Rev. L. & Soc. Just. 239, 253 (2022). ↑
  2.  Id. at 242–43; Marc Stein, Led by N.B.A., Boycotts Disrupt Pro Sports in Wake of Blake Shooting, N.Y. Times (Sept. 4, 2020), https://www.nytimes.com/2020/08/26/sports/basketba‌ll/nba-boycott-bucks-magic-blake-shooting.html. ↑
  3.  See, e.g., Des Bieler, Bill Russell Led an NBA Boycott in 1961. Now He’s Saluting Others for “Getting in Good Trouble,” Wash. Post (Aug. 27, 2020), https://www.washingtonpost.co‌m/sports/2020/08/27/bill-russell-nba-boycott/. ↑
  4.  Dustin Jones, As a Racial Justice Activist, NBA Great Bill Russell Was a Legend Off the Court, NPR (Aug. 21, 2022, 5:00 AM), https://www.npr.org/2022/08/01/1114795613/racial-j‌ustice-pioneer-nba-bill-russell [https://perma.cc/E3TX-99XE]; Darren Hartwell, Bill Russell’s Civil Rights Legacy Rivals His On-Court Accolades, NBC Sports Bos. (Feb. 7, 2023, 8:51 AM), https://www.nbcsportsboston.com/nba/boston-celtics/bill-russells-civil-righ‌ts-legacy-rivals-his-on-court-accolades/284760/ [https://perma.cc/3KSD-V3CU]. ↑
  5.  See William P. Quigley, Ten Ways of Looking at Movement Lawyering, 5 How. Hum. & C.R.L. Rev. 23, 34 (2020) (stating that social justice lawyers “are always part of a team that mostly includes non-lawyers” and rejecting the assertion “that lawyers led and shaped the civil rights movement”). ↑
  6.  See generally Jack Greenberg, Crusaders in the Courts: How a Dedicated Band of Lawyers Fought for the Civil Rights Revolution (1994) (chronicling the history of the NAACP Legal Defense Fund during the civil rights movement). ↑

  7.  See Tomiko Brown-Nagin, Elites, Social Movements, and the Law: The Case of Affirmative Action, 105 Colum. L. Rev. 1436, 1522–23 (2005) (“[T]he moral suasion of participatory democratic groups of nonlawyers, and typically nonelites, was integral to law’s movement from a Jim Crow regime to a constitutional order in which formal equality was the norm.”). See generally Jennifer Gordon, The Lawyer Is Not the Protagonist: Community Campaigns, Law, and Social Change, 95 Calif. L. Rev. 2133 (2007) (describing the role of lawyers in supporting community-led campaigns for justice); Ascanio Piomelli, Appreciating Collaborative Lawyering, 6 Clinical L. Rev. 427 (2000) (advocating for an approach of collaborative lawyering). ↑

Medicaid Act Protections for Gender-Affirming Care

Introduction

As of June 2024, ten states explicitly and categorically exclude coverage of gender-affirming care (“GAC”)1 1.GAC is not just treatment for transgender people; it is also sought by cisgender patients. See Theodore E. Schall & Jacob D. Moses, Gender-Affirming Care for Cisgender People, 53 Hastings Ctr. Rep. 15, 16, 20–21 (2023), https://doi.org/10.1002/hast.1486 [https://perma.cc/L‌QA4-EY84]. However, for the sake of clarity, in this Essay “GAC” and/or “gender-affirming treatments” refer to treatments for transgender patients.Show More for transgender Medicaid beneficiaries of all ages.2 2.Healthcare Laws and Policies: Medicaid Coverage for Transgender-Related Health Care, Movement Advancement Project, https://www.lgbtmap.org/img/maps/citations-medicaid.pdf [https://perma.cc/42RD-CNGA] [hereinafter Medicaid Coverage Map] (last updated May 21, 2024).Show More Another two states exclude coverage for transgender minor beneficiaries but presumably approve medically necessary treatment for adults.3 3.Id.Show More Coverage policies are unclear or not explicit in another eleven states and four U.S. territories.4 4.Id.Show More In total, at least twelve states5 5.Id. Exclusions that were blocked by federal courts are pending further litigation in four states: Arkansas, Florida, North Carolina, and West Virginia. Id.Show More deny medically necessary GAC based solely on the diagnosis for which beneficiaries seek treatment: gender dysphoria. Yet several states provide coverage to cisgender beneficiaries for the same gender-affirming procedures to treat other diagnoses.6 6.See, e.g., Kadel v. Folwell, 100 F.4th 122, 140 (4th Cir. 2024) (finding that West Virginia’s Medicaid program covers many GAC procedures for diagnoses other than gender dysphoria). See generally Dannie Dai et al., Prevalence of Gender-Affirming Surgical Procedures Among Minors and Adults in the US, 7 JAMA Network Open 2 (2024) (the majority of gender-affirming surgeries are chest-related procedures, and the majority of those are performed on cisgender males).Show More These exclusions violate the Medicaid Act’s (the “Act”) availability and comparability requirements, which mandate equality of coverage for medically necessary treatments without discrimination on the basis of diagnosis, type of illness, or condition.7 7.42 U.S.C.A. § 1396a(a)(10)(A)–(B) (West 2024); see Cruz v. Zucker, 116 F. Supp. 3d 334, 343–45 (S.D.N.Y. 2015).Show More Over the past decade, at least five courts heard challenges to GAC exclusions and held that they violate the Act because GAC is the consensus treatment for gender dysphoria and is medically necessary.8 8.See infra Section III.B. See generally Medical Organization Statements, Advocs. for Trans Equal., https://transhealthproject.org/resources/medical-organization-statements/ [https://per‌ma.cc/2U2S-EKKP] (last visited Sept. 27, 2024) (listing thirty major U.S. and global medical associations and societies endorsing the medical necessity of GAC).Show More To the Author’s knowledge, no court has held otherwise during that time. At the time of writing, a petition for a writ of certiorari on the issue is pending before the Supreme Court.9 9.Petition for Writ of Certiorari, Crouch v. Anderson, No. 24-90 (U.S. July 25, 2024).Show More

Exclusions differ in form between jurisdictions. Some states exclude coverage statutorily, some through agency regulations or guidance, and still others through shadow bans, unpromulgated policies generally known only within state Medicaid medical review offices.10 10.Christy Mallory & Will Tentindo, Williams Inst., UCLA Sch. of L., Medicaid Coverage for Gender Affirming Care 3–4 (2022).Show More Regardless of the form, these exclusions violate the Act.11 11.See infra Section III.B.Show More

Two issues are at the heart of these cases. A challenger must show that coverage for the categorically excluded treatment falls under a mandatory service category in the Act or that the state covers the treatment for diagnoses other than gender dysphoria. Upon that showing, the first issue is whether the excluded GAC treatment is medically necessary for the treatment of gender dysphoria. The second is whether the exclusion is a legitimate utilization control procedure.

This Essay proceeds in three Parts. First, it reviews the history of GAC coverage in state Medicaid plans. Second, it describes the availability and comparability jurisprudence requiring coverage of medically necessary care and equality of benefits. Third, it analyzes cases applying that jurisprudence in challenges to GAC exclusions, demonstrating a unanimous trend of finding the exclusions unlawful under the Act. While the Supreme Court is expected to decide only the broader issue of whether GAC bans violate the Equal Protection Clause of the Fourteenth Amendment in its anticipated United States v. Skrmetti opinion,12 12.L.W. ex rel. Williams v. Skrmetti, 83 F.4th 460, 491 (6th Cir. 2023), cert. granted sub nom. United States v. Skrmetti, 144 S. Ct. 2679 (2024).Show More the Medicaid Act framework and reasoning should be part of that broader consideration, as it demonstrates the arbitrariness of GAC bans regardless of whether transgender people are a suspect class entitled to heightened scrutiny.

  1.  GAC is not just treatment for transgender people; it is also sought by cisgender patients. See Theodore E. Schall & Jacob D. Moses, Gender-Affirming Care for Cisgender People, 53 Hastings Ctr. Rep. 15, 16, 20–21 (2023), https://doi.org/10.1002/hast.1486 [https://perma.cc/L‌QA4-EY84]. However, for the sake of clarity, in this Essay “GAC” and/or “gender-affirming treatments” refer to treatments for transgender patients. ↑
  2.  Healthcare Laws and Policies: Medicaid Coverage for Transgender-Related Health Care
    ,

    Movement Advancement Project, https://www.lgbtmap.org/img/maps/citations-medicaid.pdf [https://perma.cc/42RD-CNGA] [hereinafter Medicaid Coverage Map] (last updated May 21, 2024). ↑

  3.  Id. ↑
  4.  Id. ↑
  5.  Id. Exclusions that were blocked by federal courts are pending further litigation in four states: Arkansas, Florida, North Carolina, and West Virginia. Id. ↑
  6.  See, e.g., Kadel v. Folwell, 100 F.4th 122, 140 (4th Cir. 2024) (finding that West Virginia’s Medicaid program covers many GAC procedures for diagnoses other than gender dysphoria). See generally Dannie Dai et al., Prevalence of Gender-Affirming Surgical Procedures Among Minors and Adults in the US, 7 JAMA Network Open 2 (2024) (the majority of gender-affirming surgeries are chest-related procedures, and the majority of those are performed on cisgender males). ↑
  7.  42 U.S.C.A. § 1396a(a)(10)(A)–(B) (West 2024); see Cruz v. Zucker, 116 F. Supp. 3d 334, 343–45 (S.D.N.Y. 2015). ↑
  8.  See infra Section III.B. See generally Medical Organization Statements, Advocs. for Trans Equal., https://transhealthproject.org/resources/medical-organization-statements/ [https://per‌ma.cc/2U2S-EKKP] (last visited Sept. 27, 2024) (listing thirty major U.S. and global medical associations and societies endorsing the medical necessity of GAC). ↑
  9.  Petition for Writ of Certiorari, Crouch v. Anderson, No. 24-90 (U.S. July 25, 2024). ↑
  10.  Christy Mallory & Will Tentindo, Williams Inst., UCLA Sch. of L., Medicaid Coverage for Gender Affirming Care 3–4 (2022). ↑
  11.  See infra Section III.B. ↑

  12.  L.W. ex rel. Williams v. Skrmetti, 83 F.4th 460, 491 (6th Cir. 2023), cert. granted sub nom. United States v. Skrmetti, 144 S. Ct. 2679 (2024). ↑

©Virginia Law Review Association. All rights reserved.