I noted in my piece yesterday that in addition to having no serious basis in the Constitution the Supreme Court decision striking down the ACA’s mechanism for the new Medicaid expansion doesn’t create any kind of workable rule going forward:
Drum may be right that as a practical matter “[n]obody could even dream” of ending their participation in Medicaid altogether rather than just refusing the expansion. But so what? It’s also clear that no state would ever lower the drinking age when it would mean turning down substantial federal highway money. The use of the federal spending power has therefore created a uniform national drinking age—but in longstanding precedent no member of the current Court has questioned Congress’s authority to do so.
How the Medicaid expansion is meaningfully different is far from clear; I don’t think there’s any principled way of determining when “offering states a good deal” becomes unconstitutional “coercion.” I can imagine an argument if the money being potentially withheld was something entirely unrelated to the objectives of the program—if, say, the ongoing presence of military bases or educational grants was made contingent on the Medicaid expansion. But I don’t see how making Medicaid funding contingent on meeting increased coverage requirements can be unconstitutionally coercive.
In comments, Sebastian Holsclaw argues that there is so a real standard created by Sebelius:
What’s unworkable? 5% funding cut is ok, 100% funding cut isn’t. Unnecessary linkage isn’t permitted.
We all agree that you shouldn’t threaten the credit of the US over a piddly individual mandate, why should you threaten all of Medicaid over the same?
For reasons Bijan explains in the next comment, the analogy is specious; threatening to blow up the world economy if you can’t unilaterally impose the domestic agenda you just lost an election running on is not in any way comparable to the utterly banal practice of requiring states to conform to federal standards if they want federal money.
But the first argument is also transparently wrong. The standard, whatever it is, is absolutely not that a 100% cut of funding is unconstitutionally coercive. Perhaps Sebastian hasn’t noticed, but states that haven’t accepted the Medicaid expansion have, in fact, received 0% of the available funds. And if they refused to comply by the conditions of the pre-ACA Medicaid, they would receive 0% of the funds. There is absolutely nothing unconstitutional about placing categorical conditions on the receipt of federal funds. Although as the Roberts Court continues to build on neofonfederate constitutional logics, perhaps this will be the next frontier in the Equal Majestic Sovereign Dignitude of the states doctrine — states are entitled to federal money but don’t have to comply with the requirements. (“We’ll take your money under the Federal Snow Clearance Act, but we won’t plow your driveway. It’s right there in the 53rd Amendment to the Constitution recently distributed by the Federalist Society.”)
The federal government can without question make 100% of funding contingent on states following federal requirements and has done so many times. The 5% level of withdrawn funds was relevant to South Dakota v. Dole because the national policy (uniform, high drinking age) was only obliquely related to the withheld funding (highway funds). To the extent that it would be possible to create a workable “noncoercion” standard, it would have to involve cases where the withheld spending was not adequately related to the objective (i.e. “fund Medicaid or we’ll take away your educational grants.”)
So Roberts’s position must rely on an argument that the latest expansion of Medicaid is a fundamentally different program unrelated to the pre-ACA Medicaid (even though the pre-ACA Medicaid had been expanded numerous times.) This argument makes no sense and produces comically illogical results. As Justice Ginsburg noted:
A ritualistic requirement that Congress repeal and reenact spending legislation in order to enlarge the population served by a federally funded program would advance no constitutional principle and would scarcely serve the interests of federalism. To the contrary, such a requirement would rigidify Congress’ efforts to empower States by partnering with them in the implementation of federal programs.
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 next decent response to this point will be the first. If the Medicaid expansion in the ACA had been the first “Medicaid,” it would be plainly constitutional. So how can expanding the program (and far from the first time) with the same conditions be unconstitutional? It can’t.
And, no, the fact that two of the Democratic appointees to the Court voted for the most liberal position that could get five votes doesn’t make this terrible argument any better. Even if we very implausibly assume that this represents their sincere policy preference, well, it wouldn’t be the first time Breyer has been wrong about something.