Too much attention has been paid to John Roberts’s alleged doctrinal victories on the commerce clause, which will have essentially no effect going forward. On the other hand, the one substantive victory he handed the Tea Party deserves more attention. The brand-new doctrine Roberts invented, which arbitrarily prevented Congress from withdrawing existing Medicaid funds if states do not participate in the expansion created by the PPACA, will have a disastrous short-term impact in many states. And what’s worse is that the argument doesn’t actually make any sense in the variants offered by either the Roberts opinion or the neoconfederate dissent. Ginsburg’s opinion, as on so much else, was very good on this point:
The Chief Justice acknowledges that Congress may “condition the receipt of [federal] funds on the States’ complying with restrictions on the use of those funds,” ante, at 50, but nevertheless concludes that the 2010 expansion is unduly coercive. His conclusion rests on three premises, each of them essential to his theory. First, the Medicaid expansion is, in The Chief Justice’s view, a new grant program, not an addition to the Medicaid program existing before the ACA’s enactment. Congress, The Chief Justice maintains, has threatened States with the loss of funds from an old program in an effort to get them to adopt a new one. Second, the expansion was unforeseeable by the States when they first signed on to Medicaid. Third, the threatened loss of funding is so large that the States have no real choice but to participate in the Medicaid expansion. The Chief Justice therefore—for the first time ever—finds an exercise of Congress’ spending power unconstitutionally coercive.
Medicaid, as amended by the ACA, however, is not two spending programs; it is a single program with a constant aim—to enable poor persons to receive basic health care when they need it. Given past expansions, plus express statutory warning that Congress may change the requirements participating States must meet, there can be no tenable claim that the ACA fails for lack of notice. Moreover, States have no entitlement to receive any Medicaid funds; they enjoy only the opportunity to accept funds on Congress’ terms. Future Congresses are not bound by their predecessors’ dispositions; they have authority to spend federal revenue as they see fit. The Federal Government, therefore, is not, as The Chief Justice charges, threatening States with the loss of “existing” funds from one spending program in order to induce them to opt into another program. Congress is simply requiring States to do what States have long been required to do to receive Medicaid funding: comply with the conditions Congress prescribes for participation.
The fact that Roberts at least allowed conditions to be placed on new spending will probably mean that every state joins eventually. But in the short-term, a lot of pain will be created by a newly-minted reasoning that is also transparently wrong. And, of course, we shouldn’t just blame the Supreme Court, which after all doesn’t require any state to turn down the money to insure more of its vulnerable decisions. The Republican governors who are willing to allow many vulnerable people to suffer from needless illness or death to score political points or to demonstrate their fealty to neoconfederate political principles are behaving in a grotesquely immoral manner.