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How Far Can They Go?

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Simon Lazurus and Dahlia Lithwick note that as part of the 5 1/2 hours of oral argument the Supreme Court is holding over the constitutionality of the Affordable Care Act the Supreme Court will be entertaining an argument even more radical than the claim that the individual mandate exceeds the powers of Congress under the Commerce Clause.   The Court will also be addressing the question of whether the expansion of Medicaid in the ACA is unconstitutional.    The mechanism Congress used is a bog-standard one: the states have to agree to cover certain people in order to qualify for federal subsidies.   Some states are arguing against this well-settled doctrine, arguing that the conditions attached to the subsidies are coercive and hence violate states’ rights.

It is hard to imagine that the Supreme Court will clearly overturn decades of precedent and restrict the power of the federal government so severely.   In the landmark case in which the Supreme Court upheld the use of transportation funds to create a national speed limit drinking age, Antonin Scalia (the only current member of the Court who participated) joined the majority, which was written by William Rehnquist. As Lazurus and Lithwick say, even the judges who held the mandate unconstitutional didn’t buy it. But at this point I wouldn’t be surprised by anything — maybe they want to make extra sure that Congress can’t pass the mythical broccoli mandate…

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