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The Wages of the Medicaid Expansion Holding

[ 67 ] July 3, 2012 |

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.

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  1. catclub says:

    Ginsburg is a national treasure.

  2. James E. Powell says:

    This part of the opinion should disabuse anyone of the notion that Roberts is anything but a right-winger. There is no way he would have written this for anything but a program designed to help poor people. The right-wingers hate these programs and will do anything to destroy them.

    • NonyNony says:

      This actually is part of the evidence in my mind that Roberts decided to “save” the PPACA as a tax because of his pre-existing condition. He had some empathy with the argument that insurance companies needed reform because he’d dealt with some of the bad practices first hand and knew they sucked.

      He’s never had to use Medicaid and probably never will so it’s okay to mess with that part.

    • Richard says:

      You’ve just had a week in which Roberts voted to uphold Obamacare and voted with the liberals in invalidating most of the Arizona immigration laws. I dont see how that can happen and you still characterize him as nothing but a right winger. He’s a conservative, sure, but he has proven that there are major differences between himself and Scalia, Alito and Thomas.

      • Joe says:

        And, on a few issues, even those three are going to rule in a way with a liberal result such as Alito’s GPS decision that in various cases not involving actual placement of the device on property or Scalia trumping Thomas in protecting the Confrontation Clause.

        But, the meme of the five as just kneejerk fascists isn’t going to be changed no matter how many times they vote. Kennedy repeatedly votes the fifth lib vote, but he’s just a hopeless hack to some people and this case will reaffirm it. Until some gay rights case is up or something.

      • James E. Powell says:

        Roberts’s reasoning on the Medicaid expansion was political, not constitutional. It doesn’t involve a state’s sovereignty at all. States are subordinate under the supremacy clause. If the federal government can condition receipt of any funds to advance the federal policy, it can condition all of the funds.

        The distinction between encouragement and coercion is merely a question of whether the current, that is, temporary, political representatives of that state, agree or disagree with the policy. It is a distinction with no constitutional merit.

        It only serves the interests of some current, again, temporary, political interests within some states, but it is not a denigration of the state qua state.

        • Glenn says:

          Well, not that I would for a minute defend Roberts’ reasoning, but to be fair he did not invent the “encouragement/compulsion” distinction.

    • Davis X. Machina says:

      This part of the opinion should disabuse anyone of the notion that Roberts is anything but a right-winger.

      Suaviter in modo, dickiter in re.

  3. david mizner says:

    I don’t suppose a push to fully federalize Medicaid would get much traction at this moment, but it seems like an essential step.

    • ploeg says:

      The time might be coming for that (probably not soon, but in the foreseeable future). Governors and state legislatures of all stripes are concerned about unfunded mandates, particularly when you’re talking about medical care, so you might have some support going forward for transferring such programs from the state ledger to the federal ledger. The main problem would be raising the money on the federal side, and how much the federalized program should be funded.

  4. ploeg says:

    That’s something I’ve been wondering about. So presumably, if you provide additional money to go with your additional conditions, states have the right to reject the additional money and additional conditions and still keep the money that they’ve been getting all along. But if you provide additional conditions to an existing program with no additional money, states would presumably have to comply with your additional conditions or risk losing all the money. Or am I missing something here?

    • NonyNony says:

      To a layman it looks like Roberts just opened up the argument that Congress can’t do that to a state (provide new conditions without new funding).

      Just a layman – I’m sure that some lawyer will tell me I’m wrong (please for the love of Grod convince me I’m wrong because that seems like a seriously messed-up interpretation of Congressional spending authority to me).

      • rea says:

        I’m sure that some lawyer will tell me I’m wrong (please for the love of Grod convince me I’m wrong because that seems like a seriously messed-up interpretation of Congressional spending authority to me).

        As a lawyer, I’m rather afraid you are right.

    • Richard says:

      I think thats accurate but Roberts doesn’t really discuss the question of additional conditions with no additional money. And Roberts (not the dissenters) says the new rule only applies if the additional money is the equivalent of a new program (not merely an expansion).

      Although I agree with Scott that there is little, if any, constitutional foundation for the Roberts rule, I don’t think there will be much future impact. There will be ways to sweeten the pot in future legislation so as to make state rejection unlikely.

      • Fake Irishman says:

        And there’s always the Brad Delong solution: In the future, Congress can merely take the pro-forma step of “repealing” existing law, then reinstating it with changes as an entirely “new program.” For example of HCR, Delong points out that repealing Medicaid as it exists and then replacing it with the exact same program with the HCR amendments would fulfill the Roberts’ mandate.

        As an added benefit, it stimulates the economy through providing lots more work for printers apprentices, typists and paper-producing companies to accommodate all the additional strike-outs.

        • Malaclypse says:

          In the future, Congress can merely take the pro-forma step of “repealing” existing law, then reinstating it with changes as an entirely “new program.”

          DeLong seems to forget just how insane the right-wing has become in the years since Medicaid was passed. Since we are discussing a universe in which Republicans simply go along with ideas, can we also throw in ponies for everyone?

        • chris says:

          In the future, Congress can merely take the pro-forma step of “repealing” existing law, then reinstating it with changes as an entirely “new program.”

          In which case you have now voted to repeal Medicaid and you win an involuntary retirement.

    • Aaron says:

      Adding new conditions (that require state expenditure) with no new money would be an unfunded mandate.

  5. NonyNony says:

    I’ve been poking around trying to figure something out. I know that Medicaid is used to help fund nursing home care for the elderly – is there anything in the PPACA expansion that would expand nursing home coverage?

    Because if there is, then I suspect that the governors are just blustering – possibly without even knowing that they’re blustering. Once the nursing home lobby in their states decides to put the pressure on, the funding will be taken. I know that sounds kind of ridiculous, but they have an audience of elderly white people who vote and tend to vote Republican these days.

    • catclub says:

      I agree.

      However, I suspect that since the elederly in nursing homes are already covered, the ACA may not have a big impact there.

      It seems to me that hospital CEO’s (Rick Scott!) will be the ones pushing for new (paying) customers.

      • Anderson says:

        The elderly in nursing homes are NOT already covered. Medicare doesn’t pick up long-term care. It will pay for a transitional or rehabilitative stay in a nursing home, but that’s it.

        Medicaid is a huge payor for nursing homes, causing hard choices for lots of folks who can’t afford long-term care but who aren’t “poor enough for Medicaid.”

        • NonyNony says:

          I was assuming that catclub meant that the people in nursing homes are already covered under Medicaid without the new expansion. And therefore they wouldn’t be worried about the expansion.

          I’d agree, except I’ve watched this stuff in action. It’s trivially easy to scare seniors into thinking that anything that is touching “their Medicare” (which includes Medicaid payments to nursing homes) is going to screw them over. So if the nursing home lobby spreads some misinformation about how “Governor X isn’t taking Medi-mumble money that helps seniors in nursing homes” and don’t explicitly go out of their way to say that it won’t do anything for seniors already in nursing homes, I suspect it would be successful.

          If the Medicaid expansion also happens to do even the most trivial things for people already in nursing homes, I expect Governor X will accept the funding even more quickly.

          (And if it does anything at all for seniors in nursing homes, I also expect that this “Medicaid expansion” will be rhetorically decoupled from “Obamacare”. Probably about a day after the election ends.)

  6. TT says:

    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.

    The one major downside to a national economic recovery over the next couple of years is that a number of these truly odious characters stand to get reelected in its wake. Hopefully, bouts of psycho Teabagger overreach and good old fashioned corruption will work their magic.

    • shah8 says:

      The teabagger phenom in Brazil lead to 15 of military dictatorship. Harsh dictatorship. Being a teabagger explicitly means never taking responsibility.

  7. Joe says:

    Laurence O’Donnell had a good piece on this last night, including the duty of the press to keep track of what each state will do.

  8. dan says:

    I wonder if Roberts’ rewriting of the Necessary and Proper Clause might prove to be a more restrictive consequence of this decision than the Medicare holding. He leaves ways for Congress to get around the Commerce Clause holding and the Medicare holding can be avoided by cancelling the prior program and creating a new one, but his limitation on the Necessary and Proper Clause implies that a court can strike down any exercise of a non-express power simply by calling it an “independent” power rather than a “derivative” power. This is, much like the Action/Inaction distinction, a brand new rule of law created for this case only, and may yet be only applied to this case, but if not I’m not sure what there is, other than judicial discretion, to guide future courts in making this distinction.

    I’m really not sure why the power to operate a federal prison is not an “independent” one….

    • Cody says:

      I think it’s clear why prisons are a “derivative” power. Supreme Court Justice Roberts enjoys putting people in prison, thus it is not “independent” of his political beliefs.

      It says so in the Constitution if you put lemon juice on the back.

  9. dp says:

    The biggest question to me: WTF, Breyer and Kagan? Why are you agreeing with this drivel?

  10. Aaron says:

    The coercion argument is curious, because Congress can easily circumvent it by ending an existing program and starting a new one – Medicaid becomes Medicaid II, or “Americaid” (why not rebrand)…. Unless Roberts is going to hold that the federal government cannot end a program such as Medicaid, he’s simply instructed Congress that they have to word their legislation in a specific way in order to avoid a constitutional law issue – even though the outcome is the same.

    I don’t see it as the role of the federal courts to determine what amount of state spending triggers this type of analysis or to weigh when changes in a federally funded program are of a sufficient magnitude to require the continuation of the same program in its prior form. I also don’t think it’s appropriate for the court to, in effect, impose additional administrative cost and regulatory complexity on the federal government to maintain multiple versions of the program.

    I wonder to what extend the federal government can, through regulatory means, make it very uncomfortable for states to stick with the “old” Medicaid program rather than moving to the new. “You know all those Medicaid waivers you used to enjoy? Did you notice I said ‘used to’?”

    • Murc says:

      The coercion argument is curious, because Congress can easily circumvent it by ending an existing program and starting a new one

      That would require Congress to actually pass something.

      I mean, yeah, long-term, this is a big nothing. Congress does occasionally pass significant unfunded mandates and going forward they’ll be real careful to word things properly to get around this.

      Short-term, Congress isn’t passing a “fix” to the ACA anytime soon.

    • Glenn says:

      Roberts’ answer to that was rather unpersuasive:

      JUSTICE GINSBURG suggests that the States can have no objection to the Medicaid expansion, because

      “Congress could have repealed Medicaid [and,] t]hereafter, . . . could have enacted Medicaid II, a new program combining the pre-2010 coverage with the expanded coverage required by the ACA.” But it would certainly not be that easy. Practical constraints would plainly inhibit, if not preclude, the Federal Government from repealing the existing program and putting every feature of Medicaid on the table for political reconsideration. Such a massive undertaking would hardly be “ritualistic.”

      Which betrays a rather naive view of how the legislative process would work. Obviously, Congress wouldn’t “put every feature on the table,” they clearly wouldn’t repeal the old program without first ensuring sufficient support for the new. Indeed, they would almost certainly do it in the same bill, right?

      Section 1. Medicaid is hereby repealed.
      Section 2. New Medicaid is hereby enacted, as follows: {etc.]

      Unless Roberts means to say that is not acceptable either — that there has to be some separation of the two votes. In which case, we are talking a truly radical new doctrine.

    • Lurker says:

      Actually, I think that if a future Supreme Court wants to take this precedent seriously, it can declare such ritualistic repeal-re-enact-sequence to be unconstitutional. Similar workarounds have been voided before.

  11. David M. Nieporent says:

    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.

    Strangely, I don’t see the words “Breyer” or “Kagan” anywhere in your post.

  12. JP Stormcrow says:

    The nut ‘graph of the argument still strikes me as rather incredible.

    The Medicaid expansion, however, accomplishes a shift in kind, not merely degree. The original program was designed to cover medical services for four particular categories of the needy: the disabled, the blind, the elderly, and needy families with dependent children. See 42 U. S. C. §1396a(a)(10). Previous amendments to Medicaid eligibility merely altered and expanded the boundaries of these categories. Under the Affordable Care Act, Medicaid is transformed into a program to meet the health care needs of the entire nonelderly population with income below 133 percent of the poverty level. It is no longer a program to care for the neediest among us, but rather an element of a comprehensive national plan to provide universal health insurance coverage.

    133% of poverty level for one person is $14,000. I’m genuinely curious if Roberts is aware of that number.

    • Steve LaBonne says:

      But some of those people have cell phones! Maybe even a TV! And they’re rich compared to Bangladeshi peasants!

    • rea says:

      I’m sure he’s aware of the number $14,000–that’s probably his drycleaning bill.

    • NonyNony says:

      No, I’m sure that he is not. Even if he knows the numbers in the abstract I doubt he’s ever even had to contemplate what they mean.

      For a family of 4 133% of the poverty level is just under $30K a year. I wonder if Roberts could support his family on $30K a year – I wonder if he’s ever even thought about it.

    • Glenn says:

      I agree, that is an astonishing paragraph. If only for the fact that none of his clerks dissuaded him from sounding quite so clueless (and heartless).

      • Cody says:

        I assume he is close friends with Mitt Romney from mentioning how far one can get on $14,000.

        That’s a good dinner! What more do the poor need!?

    • Joe says:

      what line here is acceptable … how “needy” does one have to be to be “worthy” enough here

      The move does expand Medicaid significantly. It is a concern from the left that this will hurt short term lots of people. So, he could even talk about scope here w/o sounding dickish.

  13. [...] There’s also a whole mess of federalist nonsense, which is particularly appalling given the vivid demonstration we’re getting that the “flexibility” many of our glorious laboratories of democracy want is the [...]

  14. Tehanu says:

    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.

    Not in their own eyes. They think they’re saving rich people from the annoyance of knowing that any part of their taxes might be used to help poorer people. And saving rich people annoyance is what their morality is all about.

  15. jfxgillis says:

    Scott:

    Even though I’m a garden-veriety Dem Obot ACA supporter, I’m also the skunk in that garden. Sorry.

    Kagan and Breyer both signed on to the Medicaid ruling. I see two viable theories as to why.

    1. Vote trading on the Court. He would uphold the Mandate (in fact, uphold every word of the ACA since the severed provision was contained in the Medicaid Act chapter 7) if a couple of liberals went along on the Medicaid ruling.

    2. Kagan and Breyer were persuaded on the merits or decided that the fears you and others are concerened about will never materialize. Flipping Ginsburg’s argument from the Commerce Clause section, they may have decided that the social forces and size and structure of the health care market are unique, thus a one-shot solution like this is a reasonable outcome.

    • Scott Lemieux says:

      Obviously, the voting was strategic. More importantly, it didn’t matter; or only mattered in a positive way; there were five votes to restrict the spending power in some way, and the Roberts alternative was preferable given those choices.

  16. sjdem says:

    I’m confused about the legal force of the majority opinion’s section on Medicaid. Only three justices in the majority signed off on that part of the opinion. Indeed, it’s not just a plurality opinion within a majority decision, it’s a plurality judgment as well. Or am I missing something?

    I understand that four other justices also held that the Medicaid expansion was unconstitutional, but they cast their votes in the dissent. Until they formally join a majority opinion, their views as expressed in the dissent have no legal force.

    So, this is where I’m confused. Are lower courts compelled to follow a Supreme Court plurality opinion? Is a plurality opinion no different, legally, from a majority opinion? Is the executive branch legally compelled to follow a plurality judgment?

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