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The Terrible Medicaid Decision Does Not Create A Remotely Workable Standard

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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.

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  • Excellent job of dealing with the idiocy, Scott. I’d forgotten the “repeal and replace” argument, but it’s dispositive: substance over form, folks.

    • Denverite

      I should note in the interest of full disclosure that I mostly agree with this.

  • Mark Field

    It’s also not clear to me why an offer of additional funds is any less “coercive” than the threat to withdraw funds. A threat to withdraw funds could, I suppose, be “coercive” if on a completely unrelated topic, but otherwise it’s all just money. I made this point in yesterday’s thread, but Denverite completely missed the point and side-tracked the discussion before I could get back to it.

    • Denverite

      I didn’t miss the point. Your formulation assumes that the Medicaid expansion wasn’t a “completely unrelated” (a better way to put this is fundamentally different) program. But that’s a disputed and potentially dispositive point.

      • Brien Jackson

        “Your formulation assumes that the Medicaid expansion wasn’t a “completely unrelated” (a better way to put this is fundamentally different) program. But that’s a disputed and potentially dispositive point.”

        Oh ferchrissakes.

        I can haz Jennie back pleaz?

        • Denverite

          Nice analysis. Hard to rebut “yes it is YES IT IS neener neener!”.

          • Bartleby

            Also hard to take seriously the claim that “Medicaid” is fundamentally different than “Medicaid.”

            • Denverite

              Serious question. Do you know anything about Medicaid? For example, if I asked you what a waiver program is, could you answer it without google? If so, continue. If not, you’re out of your league.

              • Brien Jackson

                But this makes no difference. The federal government is providing the funds, and it’s completely within their authority to specify how those things are to be used. They could turn Medicaid into a car insurance program for teenagers and it wouldn’t matter with respect to the use of federal money.

                • Denverite

                  I guess I don’t know how to respond to this. Yes, you can imagine a world in which the federal government can condition present and future federal spending on whatever it likes, and if the states don’t want to comply, they can give up the money. That’s a perfectly workable system, and if push comes to shove, it’s probably the one I’d pick vis a vis the NFIB decision.

                  That’s just not the world we live in.

                • Brien Jackson

                  Just to state it clearly, your argument is that the federal government does not have the authority to set the terms on which federally appropriated money must be spent.

                • Anonymous

                  Trouble posting.

                  No, that’s not my argument and you know it’s not my argument.

                  My “argument” (and it’s not really an argument) is that based on existing precedent — whether correctly decided or not — the federal government can’t condition existing transfers to the states on a state’s decision to participate in a different program.

                • Denverite

                  (This was Denverite)

                • Brien Jackson

                  Well no, it’s your de facto argument, since that’s the nature of federal action here. Yes, you continue to pretend that this is analogous to the federal government conditioning Medicaid funds to state education or tax policy or something, but since that’s not what it is, I’m not under any obligation not to point this out.

                  And why you keep saying “different program” when we’ve long since made a mockery of it, well, all I’ll say is that you’re doing the trolling thing worse than Jennie.

                • Denverite

                  Yeah, the thing is, no one has made a mockery of anything.

                  Roberts’s argument was that a program designed to provide health care to certain classes of people (mostly EBD plus kids) is fundamentally different than one designed to provide health care to the poor and near-poor. With one big exception (Scott’s point that some states — about a half-dozen or so — do make the poor eligible solely because they’re poor), the only response has been “duh, it’s called Medicaid!” That’s not making a mockery of the argument; it’s not really responding to it.

                • Brien Jackson

                  Because there’s nothing to respond to. To make this as explicit as possible, it doesn’t matter if Congress passes a law that changes Medicaid from a health insurance plan to an auto insurance plan. It’s wholly within Congress’ authority to set the terms for how federal money is spent, and if they decide to redefine Medicaid as an auto insurance plan that’s completely within their power no matter how much the states don’t it. You’ve simply provided no argument whatsoever to defend the proposition that Congress lacks the authority to specify how federal money must be spent (you’ve instead swapped out Congress for CMS as though these aren’t entirely different entities with different authority).

                • Denverite

                  Please. I used “CMS” because it’s the one that tinkers with program parameters about 95% of the time, and for the purposes of the point I was responding to — that states get to opt out of all program modifications — it doesn’t matter whether it’s Congress or CMS doing the modifying.

                • Brien Jackson

                  Jesus Christ, you aren’t even trying. Put simply, it quite clearly matters whether it’s CMS (an administrative body bound by the existing law) or Congress (who can make any alterations to Congressional acts they damn well please) making the changes.

              • Kamron

                Most people don’t use the fallacy of appeal to authority as a guideline for debate technique…

          • Brien Jackson

            Coming from the person who spent multiple responses insisting that “single payer” is not an “insurance program,” this simply carries no weight. Sorry.

            But most of all, you continue to just keep making the same nonsensical point even though it’s clearly been disproven from multiple angles, most convincingly with the substance over form argument. That John Roberts is a hack does not actually prove anything other than that John Roberts is a hack.

            • Denverite

              Well, if by multiple you mean two, fine. The point is that no one who works in the field calls Medicaid “insurance,” unless you’re talking HIBI, which is in fact insurance.

              • Brien Jackson

                Well, I’ve been covered by Medicaid, and I, my doctor’s office, my pharmacy, etc. all called it insurance. But go on and fuck that chicken while deriding the level of substance in my argument.

              • DocAmazing

                All the pediatricians I know who see Medicaid patients call it “insurance” because functionally that’s what it is.

                • Denverite

                  Okay. And none of the Medicaid regulators or attorneys I know call it “insurance” because that’s something that BCBS provides.

                  Sorry for bringing up the mostly semantic point in the first place.

      • djw

        I didn’t miss the point. Your formulation assumes that the Medicaid expansion wasn’t a “completely unrelated” (a better way to put this is fundamentally different) program. But that’s a disputed and potentially dispositive point.

        Apologies if you dealt with this in the other thread, which I haven’t read, but how do you respond to Ginsberg’s observation that this decision would simply require a repeal/reenact kabuki to get around by congress?

        • Cody

          I’m sure Denverite will respond – and hopefully I don’t mischaracterize him here – but the view is that Ginsburg is right. It’s just the precedent set is really dumb. Doesn’t mean it’s not precedent.

          • Denverite

            this

            • Scott Lemieux

              The precedents are irrelevant because, as Ginsburg says, the “new” Medicaid is clearly an expansion of the old one; it uses similar means for similar objectives. The fact that it covers a broader class of people doesn’t somehow turn it into a program of a different kind.

              • Brien Jackson

                I still fail to see what difference making it a program of a different kind would make.

              • Denverite

                Scott, this analysis — just like RBG’s analysis and Roberts’s analysis — is overly simplistic and purely conclusory. It completely ignores the legislative history and background of Medicaid dating back to at least the 1950s. Sidney Thomas had a great article in the Georgia State LR a few years ago discussing this.

                In most states prior to the ACA, Medicaid was mostly limited to EBD plus kids. It’s not a stretch to argue that changing it from a categorical eligibility standard to a pure income eligibility standard changed the fundamental nature of the program — that it took it from a means-tested program meant to help the elderly and disabled and kids, to one meant to help the poor at large.

                Now, there are convincing arguments the other way as well. As you’ve noted, a handful of states did cover non-EBD poor adults. Others use CHIP to cover poor non-EBD parents. You certainly can argue that whatever the initial goal of Medicaid, states have been on full notice that the program could be used to help the non-EBD poor. If push comes to shove, I probably buy those arguments.

                But sitting their saying “duh, it’s obviously a modest expansion of an existing program because, well, because it is” doesn’t pass for argument. Even if it’s RBG making it.

                • Scott Lemieux

                  I don’t know about modest. But the program fundamentally has similar objectives — providing health care to the poor. And this isn’t the first time the eligibility class has been broadened.

                  It’s important to step back here and consider the appropriate standard for review. Given that we’re dealing with explicit authority granted to Congress on the one hand and no explicit limitation on the other, the courts should be very deferential on the question on when objectives are dissimilar. One can imagine programs so unrelated and spending conditions so disproportionate to the objectives that it threatens the very fundamental sovereignty of states. This isn’t even close.

                • Denverite

                  Sorry, work-work intervened. A couple of points:

                  But the program fundamentally has similar objectives — providing health care to the poor.

                  This may be the purpose of Medicaid just prior to the ACA. It wasn’t the purpose when Medicaid was first passed. The focus then was on the “medically needy,” which is a term of art used to describe various classes of people who need health care and can’t be expected to provide for it themselves (elderly, disabled, etc.). RBG did the same thing in her dissent. It’s sloppy. It’s infuriating. No, Medicaid wasn’t — initially — targeted at providing health care to the “poor.” It was targeted at providing health care to certain types of poor that — prior to 1965 — states were stuck doing themselves. And sure, you (meaning RBG) certainly can argue that the focus of Medicaid has expanded since then. But you actually have to make that argument.

                  And this isn’t the first time the eligibility class has been broadened.

                  This is a fair point, and as I indicated, I think it ultimately is the correct one. The response to it is that this isn’t merely expanding Medicaid by adding categories of medically needy. It’s removing the medically needy categorical eligibility concept entirely. Personally, I think that happened long ago, but as I said on the other thread, as someone with a substantial amount of experience in this sphere, it’s not a frivolous argument.

                  You take the last word. I’ve got to get ready for a meeting with Medicaid regulators tomorrow.

                • Scott Lemieux

                  This may be the purpose of Medicaid just prior to the ACA. It wasn’t the purpose when Medicaid was first passed.

                  But in context, it’s what the program was “just before the ACA” that’s relevant, not what it was in 1966. That’s exactly the point — the program has been changed substantially over time without anyone suggesting that it was a different program, let alone anyone claiming it was unconstitutionally coercive.

                • Brien Jackson

                  But Scott, you don’t get it: Denverite knows a lot about the functioning, mechanics, details, etc. of Medicaid (why he’s so knowledgeable he’d never call it an “insurance plan” like a rube or something), so obviously this invalidates all of this Constitutional law stuff.

          • Brien Jackson

            1. What precedent?

            2. What does it matter if Ginsburg is right?

          • Kamron

            Id say it’s not a precedent, because it cannot be clearly defined. If it can’t be clearly defined, it can’t be applied to novel situations, and therefore cannot be used as a guide to inform new legal decisions.

            Furthermore, I don’t think the argument is ‘whether the Supreme Court issued this decision’, it’s ‘was this decision correctly decided’. Referring to the supposed precedent set by the decision as ‘the law’ and then saying this controls the decision and therefore it was correctly decided is entirely circular.

      • L2P

        Wait, people argue in good faith that Medicaid is “completely unrelated” to the ACA? That’s hard to believe.

        Arguing that Medicaid is unrelated the HPACA is like arguing that ERISA is unrelated to employment law. Yeah, you could argue that ERISA doesn’t TECHNICALLY cover the employment relationship. But to then say that ERISA is “unrelated” to laws covering the employment relationship? Wow.

        Same thing here. Does anyone seriously contend that the ACA would be exactly the same if Medicaid didn’t exist? That’s what “completely unrelated” means.

        • Denverite

          The argument is that post-expansion Medicaid is a fundamentally different program than pre-expansion Medicaid because it’s intended to serve a different population (the poor and near-poor vs. the “medically needy,” which generally — though not exclusively — means the elderly, blind and disabled plus kids).

          • Brien Jackson

            And this argument continues to be irrelevant because Congress is directing the use of federal funds. Wheeeeeeee!

  • JKTHs

    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.

    This sums it up perfectly.

    • Denverite

      The short answer to Scott’s question — and I don’t find it super persuasive — is that states might have elected not to participate in Medicaid if they had known it was intended to provide health care for the entire universe of the poor and near-poor, as opposed to specifical categories of medically needy people.

      (The reason this isn’t persuasive is that states were already shouldering so much of the burden of providing health services to the elderly and disabled in the 1950s and early 1960s that they almost certainly would have excepted something like Medicaid expansion to get relief for those expenses. But this is just a guess.)

      • JKTHs

        Well, that is what Roberts said in the opinion IIRC.

      • Brien Jackson

        Well, no, the reason that it isn’t persuasive is that it doesn’t undercut the claim of federal power at all. Winger states might not have accepted Medicaid if New York or California are allowed to cover abortions, but you surely wouldn’t argue that this means Congress is Constitutionally prohibited from repealing the Hyde amendment.

        • Denverite

          I’ll just object to the premise here. Medicaid is forced to cover therapeutic abortions; wingers have fought that tooth and nail and lost (for example, see here http://caselaw.findlaw.com/us-10th-circuit/1316486.html for the decision in my state); no state has withdrawn from the program.

          • Brien Jackson

            No state withdrew from the program over the expansion either. I fail to see how this hampers your case (unless you’re going to argue that the requirement to cover therapeutic abortions should also be struck down on the grounds that it’s improperly coercive).

            I mean let’s just be blunt here: there’s only two options here. You have no good arguments to support your obviously untenable position that the Medicaid expansion was un-Constitutional, or you’re just trolling in place of admitting that Roberts is a hack. I don’t particularly care which it is, but we might as well stop beating around the bush anyway.

      • Royko

        I still don’t really see how opting out of the program originally if they hypothetically knew expansion was coming is really any better than opting out when the expansion happens. I mean, if the program is so essential that they can’t get out of it, I don’t see why it wasn’t just as essential then. I don’t buy this “hooked on it” argument. If they could reject it then, they can reject it now.

      • Scott Lemieux

        The short answer to Scott’s question — and I don’t find it super persuasive — is that states might have elected not to participate in Medicaid if they had known it was intended to provide health care for the entire universe of the poor and near-poor, as opposed to specifical categories of medically needy people.

        But they could not predict with certainty what Congress would do no matter what, and in fact Congress had broadened the eligibility standards numerous times, so “not super persuasive” is far too charitable. States would probably not have joined if they were told that Congress would completely withdraw their funding, but there’s no question that Congress could do so.

      • The short answer to Scott’s question — and I don’t find it super persuasive — is that states might have elected not to participate in Medicaid if they had known it was intended to provide health care for the entire universe of the poor and near-poor, as opposed to specifical categories of medically needy people.

        How is this persuasive in any way?

        The test for coercion can’t be that “I wouldn’t, in the past, have taken on X if I known that in the future X would be so awesome that I’d have to take on Y for fear of losing X and I wouldn’t accept Y now.” I mean, this is gibberish, not least because the composition of the legislatures are different.

        And just turn it around…if in the past, the state would have accepted Y mean that it wasn’t coercive? Would anyone today who was resisting expansion buy this? Did anyone examine whether it was plausible that some state in the past would have accepted Medicaid for all?

        And…what if it’s just persuasive? Being consistently persuasive means that you are coercive?

        Gibberish.

        The key point with Medicaid (and all ACA related stuff) is that it will be enormously popular once enacted. We know this. Republicans know this. Everyone knows this. Being immensely popular means that evil assholes running the state government will have a hard time killing it post facto, so their only hope is to block enactment.

        But, frankly, fuck those state governments. The fact is that the people of their states actually do want this and all this is a bullshit shell game to screw people for repellent ideological reasons.

        I think this is the extra special rankness of these arguments. We’re not at all talking about a infringement of a state’s sovereignty in any interesting way. We’re not even talking about offers they can’t refuse. We’re talking about making certain assholes face the reality of their evil: You think Medicaid is wrong for your state? Fine. Dump it. Go ahead. Otherwise, expand it as is provided for. Pay the political price for your position.

        Given the immense freedom of implementation the states have it’s extra special to claim that this is an impingement. And even if it is, fixing health care is such a fundamental part of the general welfare and it so essential to interstate commerce, that COME ON!

        Really, this is all anti-persuasive.

        • Brien Jackson

          “I think this is the extra special rankness of these arguments. We’re not at all talking about a infringement of a state’s sovereignty in any interesting way. We’re not even talking about offers they can’t refuse. We’re talking about making certain assholes face the reality of their evil: You think Medicaid is wrong for your state? Fine. Dump it. Go ahead. Otherwise, expand it as is provided for. Pay the political price for your position.”

          This. And this is where you can reasonably draw a pretty clear line on the coercion doctrine, or whatever you want to call it. The federal government might not be able to infringe on areas of state authority or sovereignty through placing conditions on federal money (so they can’t deny federal Medicaid money to a state if they don’t have an income tax or recognize gay marriages), but there’s no such claim to sovereignty with respect to Medicaid, and the claims of coercion are entirely based on politics. As I said in the last thread, the problem with Republican claims that this is coercion is that they claim to not like Medicaid in the first place!

          • As I said in the last thread, the problem with Republican claims that this is coercion is that they claim to not like Medicaid in the first place!

            Exactly! If the expansion makes a bad thing worse, let them take this opportunity to campaign agains the bad thing! Or if it’s so bad, let them do the expansion, prove it, then repeal it!

            The idea that it is coercion to design popular, useful, life saving and enhancing policies and to put incentives for the states to participate in said policies is…bonkers.

            • Brien Jackson

              And, to really lay the hackery bare, if Republicans ever pass a change to Medicaid that requires more generous states to scale back eligibility or benefits to a new federal maximum or lose federal funding, there’s a 0.0% chance that the 5 conservatives will find this to be an improper use of federal coercion.

  • Anonymous

    Why do states have to be involved in medicaid at all anyway. Why can’t it be a direct federal program like SSI, Medicare, and Pell grants?

    Is there a constitutional issue, or just a historical accident?

    • Denverite

      Historical accident. The gross oversimplication is that Medicaid relies on categorical eligibility (meaning it’s not enough to be poor; you have to poor and in a predetermined “medically needy” population, like elderly, blind or disabled). The states traditionally determined which populations were medically needy, subject to CMS minimums (like EBD and kids).

      • I thought there was a political angle too – didn’t the states balk if Medicaid wasn’t going to be under their control? I may of course be imagining that.

    • DocAmazing

      It’s worse than that. Not only is Medicaid administered at a state level, it’s administered at a county level. In California, this means that the MediCal program in Alameda County (Oakland, Berkeley) is different from that in San Francisco County, and again different from San Mateo County. That means that a kid from Redwood City visiting her uncle in Livermore runs into hassles getting care if her allergies act up while she’s not at her parents’ home. One quick bus ride, and your insurance becomes really tricky.

      • Brien Jackson

        That’s probably a state to state thing, since that’s not how it works here in Maryland.

        • DocAmazing

          Count your blessings.

          • Denverite

            Yes, Medi-Cal is crazy complicated. And the regulators are wildly unreasonable. IME.

        • Denverite

          This is correct.

  • Joe

    Your analysis is on point. At times, “tests” are in effect something of a sliding scale, a matter of judgment, but even in that respect, the opinion leaves a lot to be desired.

    I think your comment at one point that some totally non-germane condition (such as no Medicaid funds if the state has the death penalty — this was suggested by South Dakota v. Dole) might be a problem is helpful. This Court seems to like “limits” and all & that is an example of one.

  • Sebastian H

    ” Perhaps Sebastian hasn’t noticed, but states that haven’t accepted the Medicaid expansion have, in fact, received 0% of the available funds.”

    Perhaps I haven’t noticed it because your statement is false. No state has been cut off of Medicaid because they fail to engage in the expansion. So unless you are pivoting to a point outside of the case you are just flatly wrong. You have a weird need to demonize even people who mostly agree with you. It started with the Drum piece and is continuing here. My position is that everyone should have Medicare and it should be federally funded. That isn’t actually a very crazy position. But I ALSO believe, as do SEVEN members of the current Supreme Court, that so long as we have a federal system there are limits to how much the federal government can push on to the states.

    Now you are perfectly free to say that you think federal systems are stupid. But this pose that the law makes no sense is just weird. The federal government doesn’t get to use defunding everything as a threat to get some small thing. Which is a point you understand perfectly well when Republicans used it last week. And you were right about that then.

    • Brien Jackson

      ” But I ALSO believe, as do SEVEN members of the current Supreme Court, that so long as we have a federal system there are limits to how much the federal government can push on to the states.”

      But, as Scott said, the next good argument that the federal government can’t tell states how federal money must be spent will be the first. Get cracking, I guess.

    • djw

      You have a weird need to demonize even people who mostly agree with you. It started with the Drum piece and is continuing here. My position is that everyone should have Medicare and it should be federally funded. That isn’t actually a very crazy position.

      He’s not demonizing you, nor is he suggesting that your views on ideal health care policy are “very crazy.” He’s mocking the incoherence of your underlying constitutional theory. Lots of non-demons have incoherent constitutional theories.

      I’m not sure I can see how your constitutional theory doesn’t lead to the conclusion that once the Federal government enacts a program that includes a conditional dispersal of funds, they can’t modify that program without giving all 50 states the right to reject the modifications. To me, that looks pretty arbitrary, incoherent, and lacking in connection to any actual constitutional provision of which I am aware. This also seems obviously and entirely unrelated to the merits of your all things considered view of ideal approaches to health care policy.

      • Lots of non-demons have incoherent constitutional theories.

        It must be said, however, that advocacy of an incoherent constitutional theory is a positive indicator of potential demonhood.

        Further tests would be necessary for a conclusive finding – for instance, whether one has ever thought that Sarah Palin is “hot.”

      • Denverite

        This isn’t correct on the face of the NFIB decision. The reason that Roberts discusses whether the Medicaid expansion is a new or different program is because CMS can (and always have) modify Medicaid parameters.

        Now, maybe he was wrong in deciding that it was a different program. I think he probably was, though it’s a hard (or rather, complicated) question, and people who pretend it’s not either are being dishonest (less likely) or they simply don’t understand the Medicaid program (more likely). But that was a key point of the decision.

        • Brien Jackson

          But since we’re discussing new measures passed into law by Congress, CMS isn’t relevant at all here either. Yes, CMS changes have to take place within the context of existing law, but Congress is not bound by that standard, and can make a new law whenever the fuck they want to because they’re Congress.

          Or, to make this easily digestable: That CMS can’t create a “new program” has nothing to do with the fact that Congress can do just that.

        • mpowell

          I understand your argument, but I don’t think the question is as hard or as complicated as you are making it out to be. We can grant the medicaid expansion substantially changed the nature of what medicaid consitutes, especially in particular states. But that doesn’t mean that the new program should be construed as two separate programs. Certainly, it is very hard to imagine that anyone would find it plausible to argue that if Congress had created medicaid at the same time as this expansion, that the funding and requirements for funding had to be broken into two separate categories in order to be constitutional. And that’s where Ginsburg’s repeal and reenact argument comes from. Any time something becomes constitutional if you go through a repeal and reenact cycle, that’s just a silly theory of constitutionality. Arguing that it really does represent two different programs and Congress is trying to use funding for one to unfairly coerce states to accept the standards of another is really applying a level of scrutiny to the process that is just uncalled for. It is far to easy to argue that the two different categories really represent one coherent policy goal and deserve to be regarded as a single program is Congress wishes them to be. And if we’re being honest about it, it is likely that this much stricter standard is only being applied in this case for political reasons.

          • Denverite

            I’ve said before that I find RBG’s “repeal and replace” argument persuasive.

        • Scott Lemieux

          though it’s a hard (or rather, complicated) question

          It’s really not.

          • Brien Jackson

            Well, it’s a really hard question if you don’t think there’s any difference in the authority granted to Congress and CMS, I guess.

            • Denverite

              You really don’t know how to read, do you?

              • Brien Jackson

                Yes, yes I do. You have yet to explain why Congress doesn’t have the authority to redefine “Medicaid” with an act of law, though.

                • Denverite

                  Who said they didn’t? The question is whether they can condition participation in the pre-redefinition program on participation in the new redefined program.

                • Brien Jackson

                  And the answer to that question is clearly yes on the substance over form principle.

                • Denverite

                  Yeah, for the 67th time, I agree with this.

                • Denverite

                  (Or rather, I agree that this is what the law should be.)

                • Brien Jackson

                  So…maybe you ought to stop trolling then?

                • Scott Lemieux

                  Or rather, I agree that this is what the law should be.

                  We’re dealing with the Supreme Court. If South Dakota v. Dole clearly mandated that the expansion of Medicaid be held unconstitutional, it could be overruled or narrowed.

                  But of course it doesn’t, and indeed the argument is such a stretch it was on almost nobody’s radar even as the mandate argument was taking off. If the federal government can use highway funds to create a national drinking age, expanding Medicaid isn’t remotely hard to justify under the existing law.

                • We’re dealing with the Supreme Court. If South Dakota v. Dole clearly mandated that the expansion of Medicaid be held unconstitutional, it could be overruled or narrowed

                  This. Even if you disagree with Scott on the merits of the applicability (which I do not), it would be easy peasy to come to the right decision. And it’s not like THIS court has an awesome reputation for respecting precedent.

          • Denverite

            Fine, then. Answer it in some way other than “yes, it is.”

    • catclub

      “The federal government doesn’t get to use defunding everything as a threat to get some small thing.”

      Yes it does. The Federal Government can say: “Here are the funds you may have IF you meet ALL the conditions we set.” Some of those conditions may be small things, but you have to meet all of them. The USSC then said that in this case, the Feds cannot do that, which is asinine.

      • Brien Jackson

        There’s really no reason to even discuss that line, though. On the one hand, it may be that the federal government can’t condition the continuance of federal money on the state adopting a policy the federal government has no authority over (Republicans can’t take away all federally appropriated money for any state that recognizes same sex marriages). But that’s just totally irrelevant here, since we’re specifically talking about the actual usage of the money the federal government is giving them, and the feds clearly have the authority to dictate that.

    • Joe

      Pushing past a lot of stuff about Scott being mean …

      there are limits to how much the federal government can push on to the states

      Scott doesn’t deny any limits — he, e.g., suggested a germaneness rule. Consider South Dakota v. Dole regarding the rules for conditional spending programs:

      (1) Has to be for the ‘general welfare’ or other such purpose (the common defense, for instance). (2) The strings must be clearly made so states are aware of what is going on. (3) It has to be germane [there highway funds/driving age] (4) some other constitutional barrier (e.g., the 1A).

      As part of the last, the opinion cites some (hazy) rule of “coercion” where “pressure turns into compulsion.” Scott argues that these rules were not violated — states were on notice that Medicaid guidelines changed over the years & any [unconstitutional] “coercion” is some vague, unworkable rule that given the facts here doesn’t seem to actually have occurred.

      The measure is also germane. As Ginsburg noted:

      Further, in view of the Twenty-First Amendment, it was an open question whether Congress could directly impose a national minimum drinking age.

      The ACA, in contrast, relates solely to the federally funded Medicaid program

      Ginsburg doesn’t suggest “no limits” either though suggests at least some of them (e.g., when there is “too much” financial coercion) very well might be a political question left to legislative discretion. But, it isn’t necessary for her argument anyhow.

      • Denverite

        (3) It has to be germane [there highway funds/driving age]

        But germaneness was a disputed question in the case.

        • Brien Jackson

          Just in case you hadn’t already jumped the shark?

        • Kamron

          I understand that you dispute whether it’s the ‘same’ program or not, but I don’t think there’s ground to dispute that the increased Medicare funding was tied to conditions *germane* to the funding. In the “relevant” sense of the word; the “appropriate” sense just defers the question.

    • Scott Lemieux

      No state has been cut off of Medicaid because they fail to engage in the expansion.

      Of course, but that’s not what I said. What I said was that states that haven’t accepted the Medicaid expansion haven’t gotten any of the money for the Medicaid expansion. If the standard was that the federal government can’t set categorical conditions, then this would be unconstitutional.


      You have a weird need to demonize even people who mostly agree with you. It started with the Drum piece and is continuing here.

      I’m not “demonizing” you. I am saying that your defense of Medicaid decision is not persuasive.

      But I ALSO believe, as do SEVEN members of the current Supreme Court, that so long as we have a federal system there are limits to how much the federal government can push on to the states.

      Can you explain which constitutional provision is violated when the federal government makes the receipt of Medicaid funds on states accepting the conditions placed on those funds?

      SEVEN members

      Addressed several times, and as yet not defended by you.

      The federal government doesn’t get to use defunding everything as a threat to get some small thing.

      That’s not what’s going on here (leaving aside that there was no threat to “defund everything” and the expansion isn’t a “small thing.”) The federal government just expanded Medicaid eligibility as it has done many times before. And I note you have no response whatsoever to Ginsburg’s utter evisceration of your argument. Again, if the program created with the ACA’s standards was the first “Medicaid”, it would unquestionably be constitutional, so how can it be unconstitutional just because it was an expansion of an existing program?

      • Denverite

        The federal government just expanded Medicaid eligibility as it has done many times before.

        See above.

        • Scott Lemieux

          See above.

      • Sebastian H

        “Addressed several times, and as yet not defended by you.”

        Addressed? Not at all. Your argument is that the seven members who voted the way they voted and joined the opinions that they joined didn’t mean it because you can read their minds. I wish that were me strawmanning your argument. If they wanted to say something other than what they actually voted for, they could have written a separate concurrence. Or they could have concurred in the judgment without ratifying Roberts’ opinion. But they didn’t.

        You then suggest that it is my burden to strongly prove my argument that they meant the words they wrote and voted for, as opposed to your mind reading which you find so amazingly convincing that you think merely stating it is enough to stop argument.

        That is a burden of proof that only works in an echo chamber.

        • Scott Lemieux

          Your argument is that the seven members who voted the way they voted and joined the opinions that they joined didn’t mean it because you can read their minds.

          No it isn’t; you’re just unwilling to engage with it. The argument is that as anyone who knows how the Supreme Court works justices compromise all the time to get the best position available. (Brennan, it is well documented, wrote an opinion in Craig v. Boren making gender an intermediate scrutiny category even though he believed gender should be a strict scrutiny category because the former could command a majority and the latter couldn’t.) If the 5 Republicans all held that the Medicaid expansion was valid as long as all Medicaid funding wasn’t made contingent on accepting the expansion, we could safely infer that Breyer and Kagan also agreed with the position if they joined it. But when four Republicans voted to hold the Medicaid expansion void in its entirety and the other Republican initially voted for that position but changed his mind, we cannot infer that at all.

          Is it possible that the justice with the broadest version of federal power of any justice of the last 50 years suddenly discovered a limitation even most conservatives didn’t identify at the time the program was enacted? I suppose. Is it likely? Absolutely not. Can we infer with certainty that his vote represents a sincere preference? Not if you have any idea what you’re talking about.

          If they wanted to say something other than what they actually voted for, they could have written a separate concurrence.

          Again, this shows not only that you don’t understand my argument but you also don’t seem to understand how the Supreme Court works. First, obviously no justice is going to write a separate concurrence saying that they’re voting for a compromise position because the alternative is worse; that’s silly. And second, the point is that if they didn’t join Roberts’s opinion Roberts might have just joined the other 4 Republicans and struck down the whole thing. Since Breyer and Kagan’s votes weren’t decisive the had no reason to do so.

          as opposed to your mind reading which you find so amazingly convincing that you think merely stating it is enough to stop argument.

          There’s one of us whose argument consists entirely of bare assertion, and it’s not me.

          There’s no mind-reading here; strategic voting on the Court is very well-documented. If you haven’t read Murphy or Epstein/Walker that’s not my problem.

          And, finally, let’s accept your implausible position that Breyer or Kagan would have cast a decisive vote against the ACA’s funding mechanism. So what? That means that they endorsed a terrible argument, and for Breyer that would be far from the first time.

  • DrDick

    This is patently absurd. The federal government has always placed requirements for states or others to receive federal funds. They even forced us in Montana to impose a highway speed limit as a condition to receive federal highway funds. Thankfully they did that tight before I moved here. Montana drivers are crazy enough at 75 mph.

  • Royko

    Something about the tone of the coercion argument reminds me of Scalia’s comments during VRA oral arguments, where he basically said the Court has to protect Congress from being coerced into re-authorizing the VRA by an unruly public. I mean, it’s unthinkable that anyone could ever vote against something called the Voting Rights Act!!

    It’s that sort of thing, that assumes the helplessness of the states. I mean, they have power. If they want a medical coverage program and don’t like the fed’s, they can always institute their own tax to pay for their own program. And if it’s unfair that their citizens are paying a federal tax and not getting a benefit, well, those citizens are represented in Congress and can have their duly-elected representatives address their concerns.

    Unpopular move? Sure. But coercion? That’s a stretch.

  • Anonymous

    “…in addition to having no serious basis in the Constitution…”

    No..no..NO!!

    SCOTUS makes these decisions, not Scott.

  • Aaron B.

    Ah, yes, the Funfederate States of America, a nation founded on the ideal of white supremacy and water parks.

    • DocAmazing

      Come visit Nathan Bedford Enchanted Forest!

      • sibusisodan

        Early-bird visitors get Bragging rights!

  • DocAmazing

    The events of the past few years have gotten me cynical enough that I have come to believe that some no-neck state legislatures (and the no-necks who elect them) really would be behind removing Medicaid from their states, with a view to pushing poor families to move to states where benefits are less inhumane and parsimonious. Think of it as Greyhound therapy on a large scale.

    • mpowell

      It wouldn’t work. Those states inclined to pursue this strategy produce poor people as a byproduct of their economies.

    • Denverite

      In 100% frankness, the reason this would never happen is that Medicaid supplies a huge chunk of the LTC industry’s revenue (maybe most of it), and they have a huge lobbying presence at the state level.

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