Home / General / The Supreme Court’s Medicaid Disaster

The Supreme Court’s Medicaid Disaster


Brad DeLong is excellent on the consequences of the Supreme Court arbitrarily re-writing the ACA:

This is the piece of the article that leaves me most annoyed because of the absence of context. Why have 20 states refused to take part in Medicaid expansion? It’s not because of how the Affordable Care Act was written. All states currently participate in Medicaid–it is a good deal for a state to do so. The ACA changed Medicaid. But John Roberts rewrote the law from his post on the Supreme Court to give states the option of (a) simply continuing with Medicaid-as-it-exists-in-2013 in addition to the options of (b) participating in Medicaid-as-it-exists-in-2014 and (c) dropping Medicaid entirely.

When John Roberts rewrote the ACA from the bench, he did so very badly. The expansion of Medicaid meant that a great many people who used to show up at safety-net hospitals without any insurance at all will now be covered by Medicaid, so the rationale for the Disproportionate Share Payments to safety-net hospitals that treat the uninsured will go away, hence the ACA eliminates the no longer-needed DSP. But in states in which Medicaid isn’t expanded, the need for the DSP remains. When Roberts rewrote the law, did he rewrite the law so that the DSP remains for states that do not accept Medicaid expansion? No. Will safety-net hospitals in non-expanding states close as a result? Some of them, probably, without some other emergency fix. Did Roberts know what he was doing? Almost surely not. If you rewrite a law from the bench, shouldn’t you and your clerks first familiarize yourself with the law enough so that you know what you are doing? Next question!

When John Roberts rewrote the ACA from the bench, he did so very badly. The expansion of Medicaid meant that people with incomes less than 133% of the poverty line will now be covered by Medicaid, so they will not need to be eligible for subsidies to make the policies offered on the exchange affordable to them. But in states in which Medicaid isn’t expanded, people with incomes less than 133% of the poverty level will need to purchase heath insurance on the exchanges if they are to have any form of coverage at all. When Roberts rewrote the law, did he rewrite the law so that people not covered by Medicaid with incomes less than 133% of the poverty line become eligible for exchange subsidies? No. Will there thus be millions of people left out in the cold? Yes. Did Roberts know what he was doing? Almost surely not. If you rewrite a law from the bench, shouldn’t you and your clerks first familiarize yourself with the law enough so that you know what you are doing? Next question!

An additional wrinkle–a wrinkle that may have pushed Arizona into the Medicaid expansion camp–is that non-U.S. citizen legal residents of the United States with less than five years of residency and incomes less than 133% of the poverty line are eligible for exchange subsidies. Thus the ACA, as rewritten by John Roberts, treats working-poor non-citizen immigrants with less than five years of residency much more favorably than it treats working-poor citizens. Did Roberts know what he was doing? Almost surely not. If you rewrite a law from the bench, shouldn’t you and your clerks first familiarize yourself with the law enough so that you know what you are doing? Next question!

Now, you could blame Congress rather than the Supreme Court for this if they had any reason to believe that the Supreme Court would strike down the mechanism for expanding Medicaid, but of course they had no reason whatsoever to expect such an unprecedented intervention. (If Congress can use highway spending to enforce a tenuously related national drinking age, why should the umpteenth expansion of Medicaid have even been in question?) The lack of precedent might not be an issue if the Supreme Court was enforcing a specific constitutional provision, but it was doing no such thing. The argument has a Shelby County problem — not only is there no specific prohibition the Medicaid expansion violated, Congress is explicitly authorized to tax and spend for the general welfare. The Constitution does structurally establish a federal system, and I suppose I could come up with a hypothetical where the federal spending power was so coercive that it threatened the very structure of federalism itself (“not a penny of federal money if you don’t modify your divorce laws!”), although trying to come up with any such law that could actually be enacted by Congress I get nothing but a loud buzzing noise.

If the Court is going to freelance and invent prohibitions that swim against the text of the Constitution, it faces a particularly high burden of proof — there had better be a crucial liberty interest at stake and the logic needs to be airtight. We’ve been through most of this before, but the Medicaid expansion part of Sebelius fails spectacularly on this score:

  • If Congress had just created the ACA’s version of Medicaid from scratch, it would be unquestionably constitutional.
  • If Congress had just repealed Medicaid outright this would unquestionably be constitutional.  Roberts’s logic seems to imply some sort of permanent state entitlement to receive federal money once it’s been given, but he can’t possibly believe that.
  • If Congress expanded Medicaid by just making it a Medicare-style federal program, this would unquestionably be constitutional even though it would give less autonomy to the states than the ACA’s Medicaid expansion did.
  • And the fact that the decision is based on this transparently results-oriented, farcically incoherent formalist hair-splitting  means that by definition there’s no meaningful liberty interest being protected by the Court, even you believe that that extratextual “rights” of states should be privileged over the statutory rights of actual citizens.   The ACA’s Medicaid expansion did not threaten to deprive state governments of anything they’re constitutionally entitled to, and Congress remains free to pursue identical goals in ways that are actually more “coercive” towards state legislatures.  The decision is also a disaster on a pragmatic policy level for the reasons cited above.
  • The fact that the decision is based on this transparently results-oriented, farcically incoherent formalist hair-splitting also means that Congress is given little guidance going forward.
  • And, please, save the “but it was 7-2, just like the permanently unassailable Dred Scott v. Sandford!!!!!” argument.  Even in the enormously unlikely event that Breyer and Kagan weren’t voting strategically, all this would prove is that Breyer and Kagan joined a terrible opinion and were probably extremely naive about the consequences of doing so.  In Breyer’s case, at least, this would have been far from the first time.

Whether 5-4 or 9-0, what the Supreme Court did to the Medicaid expansion was terrible constitutional law and worse policy.

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  • Brad DeLong

    Ah, Damn!! I come here expecting to learn something new and smart from smart people about the disaster that is the Roberts Court’s Medicaid expansion.

    & what do I find!?!?!?!?

    I AM DISAPPOINTED!!!!!!!!!!

    • Aimai

      Hey Brad. No matter where you go, there you are. Its as true today as it was in Buckaroo Banzai.

      • dr. fancypants

        +1 dimension.

    • One thing that seems a bit wrong in your analysis (I’m assuming this is you :)) is that I think the ACA is changing delivery and quite a bit. The pressure is on for ACOs and however clunky and hated meaningful use and quality payments are, they are causing serious efforts to improve care. Bundling will have an even bigger effect effect when it’s implemented.

      • Denverite

        Eh. I’ve been really disappointed with the total reluctance of providers to enroll in ACOs. And I don’t think that there will be any improvement on that score until we have a better idea in what exactly the one- and two-way risk compensation models do. But by then, it may be too late.

        • What in learning in my sabbatical year (embedded at Siemens Healthcare solutions) is Jair how freaking hard it is to change health care organizations. Power is too diffused at every level. Health IT is brutally challenging not least because of the huge investment in existing systems which are tightly welded to care processes.

          That being said, all the chatter I hear strongly suggests that orgs are seriously preparing and trying to move to the new world. Bundling is going to be a big shock and all hospitals are trying to get ready for it (next year?).

        • ThrottleJockey

          I wish I had time to discuss this properly, but I’m ambivalent about ACO’s. I feel like its a ‘black box’ solution that’s a crap shoot at best. The more I interact with the health care system the more I feel like ACOs are just the .Next version of a slot machine.

          Part of the reason I doubt them comes from this article. http://www.washingtonpost.com/blogs/wonkblog/wp/2013/04/28/if-this-was-a-pill-youd-do-anything-to-get-it/

          Health Quality Partners’ results have been extraordinary. According to an independent analysis by the consulting firm Mathematica, HQP has reduced hospitalizations by 33 percent and cut Medicare costs by 22 percent.
          Others in the profession have taken notice. “It’s like they’ve discovered the fountain of youth in Doylestown, Pa.,” marvels Jeffrey Brenner, founder of the Camden Coalition of Healthcare Providers.

          • That article was very interesting and helpful for me. Thanks a lot.

            I don’t think ACOs are a panacea, but I do think shifting responsibility for cost and quality is a critical step. Until that’s more systemic, the kind of interventions describe in that article (weekly home visits) are going to be super hard to achieve.

            …not that this means that Medicare shouldn’t Just Do It. They obviously should.

    • sparks

      Hey Brad, still plugging labor arbitrage?

    • Gwen

      Reading your post (Brad DeLong) about Republican end-games on Obamacare…

      I wonder if the 2016 field (which will probably be just as seven-dwarvsy as 2012s was) will spend months debating who is the bigger he-man Obamacare hater, or whether anyone will propose specific alternatives to the ACA.

      Because now the GOP is, at least in theory, in the position of having to “sell” an alternative to the status quo… the structural disadvantage of that (opponents picking apart the details) is a big part, I think, of why it took 60 years for the Democrats to deliver on something as imminently sensible as healthcare reform.

      • Gregor Sansa

        I think that by now it’s immanently sensible, not imminently. But you probably meant eminently.

        • Gwen

          Ja naturlich.

  • I’m not sure that all the insanity stemming from it isn’t a feature for Roberts. He MO is to make a decision thaT looks like its not gutting the law but leaves it weakened.

    Also, I find it striking how the decision violates so many norms from formalist to consequential.

    • Pres. Obama

      After a careful review of Chief Justice Roberts rulings in matters related to campaign finance, voting rights, and the ACA, the Surgeon General has determined that Justice Roberts is de facto brain-dead.

      The body will be removed from his chambers for embalming immediately, and I will be appointing a new Chief Justice within the week.

      • UserGoogol

        That’s obviously very silly and not going to happen, but is it possible for Roberts to merely be demoted to Associate Justice? The Constitution says people hold their “offices” in good behavior, but since the position of Chief Justice is very vaguely defined, you could plausibly say that his office is being a Justice of the Supreme Court, and whether he’s Chief or Associate is a separate issue.

        Of course, for the same reason, demoting him to Associate Justice wouldn’t really accomplish much. But it would be nice to have the option. If over the course of the next few decades Democrats manage to appoint more liberal judges to the Supreme Court, it would almost seem silly for it to still be the “Roberts Court.”

        • Anon21

          I can’t see it. The Chief Justice does have a constitutionally-defined role that’s distinct from the other Justices: he presides over the Senate in the trial of presidential impeachments. Not necessarily a particularly important power, but I think it forecloses any argument that the office is interchangeable with that of an associate Justice.

  • Denverite

    Your post is excellent, Scott.

    I do have a problem with DeLong’s, though. It’s not like the notion that tinkering with one aspect of the ACA might have drastic consequences for other aspects of the ACA wasn’t discussed in briefing and oral argument. Indeed, this was the focus of much of a full day of the hearing. It was the genesis of Scalia’s much-discussed quip about not caring if his clerks had to go through the entire ACA with a fine tooth comb, HE didn’t want to have to do it. Scalia’s response to the problem was to basically say that SCOTUS should just throw the law out in its entirety if it invalidated a single portion of it. And that’s the big problem with DeLong’s discussion — yes, Roberts screwed up by rewriting the Medicaid expansion without considering the effect on other ACA provisions, but the fix for that just as easily could have been striking the ACA in its entirety as it could have been not rewriting it. Personally, I’m glad Roberts didn’t do the former. We’re going to have a tough decade or so as the red states trickle into expanding Medicaid (and my guess is that virtually all will have expanded by 2020), and lots of people are going to die because of that — but not nearly as many as would die if Roberts simply invalidated the ACA altogether.

    • Frank Somatra

      You’re assuming a conclusion though. The alternative available to Roberts was not to strike down the ACA but to uphold the Medicaid expansion in full.

      • Denverite

        I’m not assuming anything. The point is that Roberts could have addressed DeLong’s main objection (which, again, was discussed at length at oral argument) by simply throwing the whole law out as by not invalidating expansion.

        Scott is much better on why to not invalidate expansion (this is a position I have a little uneasiness about because I think it gives short shrift to how drastic the Medicaid expansion was, but at the end of the day, I’m FAR closer to Scott’s position than Robert’s).

        • Given how intertwined the expansion is with so many other aspects of the law, do you think that weakens the classic coercion aspects or strengthens them?

          Ie is the fact that rural hospitals get screwed coercive?

          • Denverite

            Neutral. I think it supports Scalia’s point at argument that there’s just no way you can strike one provision of the law and leave the rest standing, but I don’t think it says anything one way or the other re: coercion.

            • I would think the fraughtness of severability is not great either way. Major legislation just is complex and there are likely to be lots of even constitutional fails. This would mean either giving the supremes a veto or maybe weakening judicial review.

              And this clearly isn’t a problem of omnibusing: the various provisions are genuinely interdependent (well and so is any law on the current legal landscape).

        • Manny Kant

          The severability issue was over the mandate, not the medicaid expansion.

          • Denverite

            Yes, I know, but the arguments are pretty much the same.

  • Gwen

    Anyone who believed John Roberts when he said he would just “call balls and strikes” is some kind of special idiot.

    The best baseball analogy I can think of here, would be if the umpire grabbed the bat away from Jose Abreu, and said, “let me show you how to hit a homer, kid.”

    (And then of course proceeds to strike out).

    • DrS

      John Roberts is Joe West

      • Gwen


        • DrS

          For showboating incompetence, the real Joe West destroys Enrico Pallazzo.

          But I will say, having my nuts bit off by a Lapplander *is* the way I want to go.

        • efgoldman

          Ron Luciano!!!

      • toberdog

        For purposes of this comment, you should have changed your nym to “Ron Gardenhire.”

        • DrS

          I do hate a missed opportunity for a joke nym change.

          Almost as much as the inevitable nymfail that follows.

    • Jordan

      I’ve always wished someone would take a bunch of .gifs of umpires or refs acting like jackasses and superimpose Roberts’ head onto them.

      Sadly, the internet does not appear to have come through for me.

  • Incontinentia Buttocks

    I don’t buy this piece of the quoted passage:

    Will there thus be millions of people left out in the cold? Yes. Did Roberts know what he was doing? Almost surely not.

    What evidence is there that Roberts didn’t know exactly what he was doing? As you note, the decision’s reasoning was ridiculous on its face. Roberts is a smart man. The ruling very effectively monkeywrenched a key provision of the ACA. Since the Republican Party basically spent all of 2010-2014 desperately trying to monkeywrench the ACA, why assume that a very effective act of monkeywrenching by a Republican jurist was the product of naïvité?

    • JKTHs

      Yep, I think he pretty clearly knew what he was doing. The result was already determined, they just had to search for a bullshit explanation.

    • catclub

      “why assume that a very effective act of monkeywrenching by a Republican jurist was the product of naïvité?”

      because he could have sided with the side that wanted to declare the entire thing unconstitutional – a gigantic monkeywrench.

      And he nearly did if the reporting is accurate.

      • David Hunt

        I think that Roberts decided against striking down the entire ACA because he knew he didn’t have a constitutional leg to stand on and that such a ruling would be historically grouped with Dred Scott and Bush v Gore as one of the worst Rulings ever handed down by the Court. He cares enough about how history will view him that he decided not to go full Taney.

        Just my two cents.

        • jim, some guy in iowa

          that, and I think the conservatives are willing to hamstring something like the aca in order to ‘prove’ their larger point, that government can’t/doesn’t work

        • Barry

          The way I put it is that Roberts understands that a stiletto can kill somebody just as dead as a battle-ax, but the body can be laid out all pretty, and death declared to be from ‘natural causes’.

          • Loud Liberal

            Barry and Jim, both good observations, and probably true.

        • Loud Liberal

          He couldn’t possibly care that much!

      • DAS

        But throwing out the ACA entirely would not have been good for either SCOTUS or the GOP. It would have revealed how political the SCOTUS is, which, considering how the GOP has made “political” into a bad word, would undermine the authority of SCOTUS. And it would have given the ACA as an issue back to the Democrats (“you’d have better health care if it wasn’t for the Roberts court … this is why you NEED to vote Democratic”).

        OTOH, by keeping the ACA as a “tax”, the GOP has the ACA as a live issue (and can talk about “the health care tax”, etc.). Also, by making the ACA as bad as possible, the GOP can make more political hay out of it.

        Also what Jim said about the GOP proving “their larger point” and Barry’s comment about stilettos.

        • LeeEsq

          I am not entirely certain that throwing out the entire ACA would have ruined the Supreme Court by revealing how “political” it is. Bush v. Gore or Citizens United was supposed to do the same but the Supreme Court is still going strong despite that. If the political Supreme Court is on your side than your going to support it. Reforming the Supreme Court will require constitutional amendments and several laws and those things aren’t going to happen. The GOP is doing fine in the short and medium term despite how we see them.

    • Scott Lemieux

      I’m with you on this point entirely.

  • Gwen

    The past 25 years has spawned a growing body of increasingly incoherent and obtuse federalism jurisprudence, Sebelius and Shelby County being the most notable recent additions. But all this weirdness started with Printz and the Drug-Free School Zones case way back in the 90s.

    The last time the Court seemed to be getting federalism right, IMHO, was around the time that South Dakota v. Dole was decided.

    I’m afraid the problem has gotten so bad we might need a constitutional amendment to stop the insanity foisted upon us by Federalist Society wankers.

    • Snarki, child of Loki

      “I’m afraid the problem has gotten so bad we might need a constitutional amendment drone strike to stop the insanity foisted upon us by Federalist Society wankers.”


      • Gwen

        I’ll write up a memo stat and forward it to Rand Paul!

  • Nobdy

    In the original post that DeLong is responding to Salam says:

    I’m personally rooting for an outcome in which all Americans can have access to affordable health coverage.

    And that is the Republican alternative to Obamacare. To root for (at least publicly), and do nothing to encourage or achieve, a future when Americans don’t die needlessly for lack of insurance. Democrats should be making this point more frequently and forcefully.

    The thing to remember when Obamacare is critized is that there was no realistic alternative. Single payer was not politically feasible and is less so now, and the Conservative alternative is lip service and no real policy.

    Roberts may have dealt the law a mightly blow, but its survival means that it has at least a chance of being fixed (since small fixes are much easier to push through than a whole new paradigm).

    There is almost no position in American politics where it’s so easy to figure out who the good and bad guys are. The good guys are the ones who want to keep poor people alive and healthy. It’s as simple as thta.

    • Scott Lemieux

      Right. If doing absolutely nothing could magically give affordable health care to all Americans, moderate Republicans would accept this outcome! That’s the “sensible Republican” alternative.

      • Dr Ronnie James, DO

        When the bedrock of your entire economic worldview is that an Invisible Hand will solve everything, is this really that far fetched?

      • MattT

        “I’m a well-wisher, in that I don’t wish you any specific harm.”

      • Right. If doing absolutely nothing could magically give affordable health care to all Americans, moderate Republicans would accept this outcome!

        Assumes facts not in evidence. This seems more plausible:

        Right. If doing absolutely nothing could magically ensure a Republican lock on ruling while incidnetly give affordable health care to all Americans, moderate Republicans would reluctantly accept this outcome while still trying to shovel money into the top.

    • ASV

      Democrats should be making this point more frequently and forcefully.

      Alan Grayson did — “Do you want the Democratic plan, or do you want the Republican plan? Remember, the Republican plan: ‘Don’t get sick. And if you do get sick, die quickly.'” And as I recall, Democratic elites failed to stand with him when the outrage machine cranked up. Indeed, Mother Jones listed it as one of his “six most outrageous quotes.” Similarly, when Ezra Klein said that Joe Lieberman “seems willing to cause the deaths of hundreds of thousands of people in order to settle an old electoral score,” Washington’s fainting couches sagged and buckled under the weight of all the city’s serious Democrats.

  • rea

    There is no cure for what ails the country that does not involve plowing the Republicn Party under and sowing the fields with salt.

    • Aimai

      That’s pretty drastic, rea. Couldn’t we plow them under and use them for fertilizer?

      • rea

        Too toxic . . .

        • Snarki, child of Loki

          Salt doesn’t stop Zombies from rising up; why just look at the harm that Zombie Reagan has done!

          So plan B: big honkin’ bonfire. Scalia should be glad to be the guest of honor at the Auto-da-fé.

        • Fake Irishman

          If we plowed them under, we’d probably have the votes in Congress to drastically expand the Superfund program.

      • I for one don’t want to eat Republican-fertilized produce.

        • Aimai

          I do. As long as its well washed with iodine and cooked until all the parasites are gone I don’t see the problem.

        • DrS

          The prion disease risk seems high.

          Unless I’m wrong about how those are spread. If they can be safely used as veggie fertilizer, no problem.

          • Richard Gadsden

            They can be safely used as veggie fertilizer.

            Prions are proteins, but plants don’t have prions to get coerced out of shape.

    • Malaclypse

      I say we take off and nuke the entire site from orbit. It’s the only way to be sure.

      • N__B

        Ordinarily, I approve all uses of that quote. In this case, however, isn’t “the site” coterminous with the United States?

        • Malaclypse

          Not once they are all in FEMA camps after Obama breaks into their houses and confiscates their guns.

          • MAJeff

            Don’t forget the mandatory abortions and same-sex marriages.

    • Loud Liberal

      I was going to say that soylent green would be more efficient and less wasteful use of carbon based life forms, but, there isn’t enough Pepto-Bismol in the world.

  • Tiny Tim

    Roberts was not quite corrupt enough to chuck it out, but corrupt enough to know he at least needed to put a spanner in the works.

    • politicalfootball

      This is far too kind to Roberts. I think he was frightened to throw out the ACA for some very good political reasons. The perceived legitimacy of the Supreme Court is an issue he cares about, and his silly reasoning would have gotten a lot more scrutiny had it hurt people who matter to him. As it is, only poor people in Republican states got hurt.

      Moreover, Obamacare is the best the Republicans were ever going to get, in the long run. That’s why the Republicans can’t come up with an alternative – if you start with the assumption that the American people are going to demand healthcare, this is the conservative alternative.

      And the healthcare issue plays much better for Republicans with the ACA in existence than without it. So much so that even the non-persons in Republican states are eventually going to get healthcare.

      Remember, nobody really knew how much of a nut Kennedy is. As soon as it was clear to Roberts that the law was actually going to be overturned, he switched sides.

      The next test of my theory will be abortion — if Kennedy were to turn against Roe v. Wade. My bet: The Roberts court will never directly oveturn Roe v. Wade, even if Roberts has to vote to uphold it. (This, of course, won’t stop the court from overturning it de facto.) Repeal would damage Republicans in a way that restricting the rights of non-persons (as defined above) does not.

  • rea

    Typical demonrats, talking about health care–just trying to distract the country from the real issue–Benghazi!

  • becca

    I wonder what Pope Francis thinks of our justices? Any prominent Catholics been ex-communicated lately?

    • Lee Rudolph

      I wonder what Pope Francis thinks of our justices?

      This, I assume.

      Any prominent Catholics been ex-communicatedorcised lately?


      • becca

        I’m cool with that. When they start casting out demons I hope they let Nino go first.

        • Snarki, child of Loki

          Washington DC is seriously lacking in not having a Tarpeian Rock for just such occasions.

          • N__B

            The Washington monument is reopening!

  • wengler

    Roberts was being highly pragmatic. He needed to find a way to cripple the policy without pushing a new bright shining standard by the Supreme Court on the limitation of federal power.

  • Frank Somatra

    I believe you meant national drinking age, not national speed limit.

    • James E Powell

      It was both. The national drinking age came in response to lobbying by Mothers Against Drunk Drivers. The national speed limit was a response to one of the early oil shortages, but wasn’t challenged in the courts for quite a while. Later, it was agreed that speed limits were for pussweeds, so Sammy Haggar no longer had to drive 55.

      • Greg

        But the national speed limit has a much clearer connection to transportation funding, so it’s less apropos as an example.

      • Snarki, child of Loki

        That was the Highway Patrol Full Employment Act of 1974, passed by some dude, then blamed on Carter.

    • rea

      They did it with both–you must be too you to remember the Carter presidency.

      • Malaclypse

        The drinking age was Reagan, while the speed limit was Nixon.

        • Crunchy Frog

          But everyone remembers it was Carter. Another example of GOP historical revisionism.

          For the record, Evil Reagan campaigned in 1980 on the premise that the 55 limit was unconstitutional due to the method of threatening to withhold highway funds if states did not pass the appropriate laws. Then he turned around and used the same method for the drinking age. One of the earliest examples of how whatever wingnuts claim are principles aren’t – they are just a means to whatever end ($$$) they have in mind.

      • UserGoogol

        Drinking age is more tangential, though. Speed limits are pretty intimately connected with building highways, (you pay for the roads, it makes sense to tell states what they can do with them) while banning the sale of alcohol to all people under 21 so as to prevent drunk driving on those roads in particular is a bit indirect.

    • Scott Lemieux

      Right — will correct.

    • DrDick

      They did it with the speed limits, too. That is why we have one on highways now in Montana.

      • Scott Lemieux

        right, to be clear, they did both, but I mean to cite the drinkign age (which was the case it cited.)

  • James E Powell

    To this day I wonder why Roberts did not simply vote with his right-wing compatriots and throw the whole thing out. He’s the CJ, what does he have to lose? Liberals will say bad things about him? A decision declaring ACA unconstitutional might have swung the 2012 election. So why didn’t he do it?

    • Anonymous

      It’s doubly weird that he ended up to the left of Kennedy.

    • JKTHs

      I don’t either. I guess there was some benefit to having liberals think that they won while still taking a hatchet to the law but it’s nowhere near the benefit of striking it down entirely.

      • Denverite

        This significantly overstates the effect of the ruling on Medicaid expansion. It’s not like he threw it out. He made it optional. And because the terms are so overwhelmingly friendly to the states, that likely means that it just delays universal or near-universal expansion, not that it blocks it.

        • JoyfulA

          CorbettCare, an odd privatized Medicaid with job search requirements etc., by which Gov. Corbett claims Pennsylvania will save a great deal of money, will, if allowed by HHS, require hiring 723 new employees to administer. By comparison, New Jersey is running a regular Medicaid expansion with 100 new employees.

          At least the PA unemployment rate should drop.

          • Gwen

            The odd Republican need to punish the poor at every turn strikes again.

            Maybe they should add a drug-testing requirement for Medicaid recipients — would definitely at least be relevant to health, and would definitely stimulate the economy.

            (In a Keynesian sense, mandatory drug screening is like liquid gold… in a cup!!!)

          • Snarki, child of Loki

            That was a gracious compromise by Corbett! His first plan required new Medicaid applicants to agree to being FRACKED.

            Corbett is one stone crazy fracker.

    • A decision declaring ACA unconstitutional might have swung the 2012 election.

      The anti-Court reaction might have been much too much … sheer rage at such obviousl politicking.

      And of course, it’s entirely possible that Roberts really *does* buy the “it’s a tax” argument.

    • L2P

      Liberals will say bad things about him?

      Why is that so hard to believe? It’s one thing to be criticized for being conservative. It’s another thing to be criticized for being a conservative hack who ignored the law for purely political considerations. It’s the difference between being Burger and Taney. Burger doesn’t go down in history as being a distinctly evil, and distinctly terrible, jurist. He’s just another in a long line of conservative jurists futilely holding up his hand saying, “Stop.” Roberts doesn’t mind that legacy.

      But it takes a special sort of hackery to be ok with being a Taney. Scalia doesn’t seem to mind, but Roberts seems to have a problem with it.

      • But it takes a special sort of hackery to be ok with being a Taney. Scalia doesn’t seem to mind, but Roberts seems to have a problem with it.

        Well, for whatever reason, he did have a problem with it in Sebelius, but he certainly didn’t in Shelby County.

        • Nathanael

          He doesn’t want to be *caught* — you aren’t a Taney unless you pull your egregious biased hackery in a *prominent* case.

    • Crunchy Frog

      I don’t know why Roberts did, but it’s worth remembering that the decision to throw out ACA had been made and drafted and only at the last moment did Roberts switch his vote. The opinions were all drafted that way and only partially re-written.

      This means either he personally had a change of heart or someone got to him. The wingnut SCOTUS members are so well-connected in wealthy wingnutia, so groomed for their positions, and so well compensated from wealthy wingnutia via extracurricular methods that I can’t for one second believe that a decision of this criticality was left to the whims of whatever the judges wanted. Some very powerful person or group convinced Roberts to defect.

      Why? We can only speculate. One possibility is that the health insurance industry actually decided that ACA is for them more profitable. Another is the fear that striking down ACA would energize the country to put the Dems back in power – the idea being that striking down ACA might actually pave the way to a public option or even (shudder) single payer. But if left as is ACA makes the positions of the big insurers even more entrenched.

      Meanwhile, while Robert’s rewriting of the Medicare expansion is as horrible as described here, I don’t think we can definitely conclude this was his intention. Roberts – and for that matter most of the wealthy wingnuts who support him – don’t have any track record of showing insight on setting up complicated policy mechanisms that work. It’s more likely they were trying to save face for Roberts by doing *something* as a token for the right wing and didn’t think ahead to the consequences. Remember, these are the same people who came up with the plan 1. Occupy Iraq, 2. Cut taxes in Iraq, 3. Profit! They are very much apt to wishful thinking.

      • Scott Lemieux

        One possibility is that the health insurance industry actually decided that ACA is for them more profitable.

        I don’t see how, given both that the actually existing insurance industry didn’t believe it, and it doesn’t explain why only Roberts switched his vote.

        • DAS

          Do we know that the health insurance industry actually thinks the ACA is bad for them?

          I always figured that health insurance industry must lurve them some ACA, but they need to keep up the appearance that it is the worst thing ever for them along the lines of Brer Rabbit howling about not getting thrown in the briar patch. Also, the health insurance industry wants ACA to be (perceived as) bad that way (a) whatever the industry does to screw over folks, they can blame on the ACA and (b) if the ACA is perceived as bad, that saps any momentum for further reforms that might hurt the health insurance industry.

          But mandating people buy your product? Any industry is gonna support that, even if they are not on the record as doing so.

          • Malaclypse

            Do we know that the health insurance industry actually thinks the ACA is bad for them?

            Well, they spent a lot to try and defeat it.

            I always figured that health insurance industry must lurve them some ACA

            I always figure that people that think this ignore medical loss ratios completely.

            • Sharon

              I always thought that the insurance industry thought that they could push a lower medical loss ratio in the rule making.

            • Nathanael

              The insurers wanted a mandate and no other regulations; that’s what they fought for. The ACA was better than nothing for them, though.

          • Scott Lemieux

            Any industry is gonna support that

            Not it requires you to actually provide something for your product, when under the status quo ante you didn’t. Being able to reject unprofitable customers worked just fine, whereas the flipside to the mandate is that they actually have to insure everyone who applies.

            • Nathanael

              No, it didn’t work. There was a prices-up, volume-down death spiral going on.

        • Nathanael

          The health insurance industry definitely wanted ACA, from day one. They were desperate for it.

          They were in a death spiral. Individual insurance had basically disappeared in several states including NY, due to the death spiral of increased prices and reduced numbers of customers.

          The same pattern was happening to small businesses and it was feeding into large businesses.

          There would have been no health insurance industry in 10 years; ACA saved the industry.

          Some of the health insurance execs understood this.

  • Jeremy

    This is all part of a broader trend in modern conservatism towards opposing all exercises of federal power, even where the power exercised is clearly granted to the federal government by the Constitution. We saw this with Medicaid expansion and in Shelby County.

    We have seen this again recently in the Cliven Bundy case. Many prominent conservatives stated that they supported Bundy because he was fighting against “federal government overreach.” However, “overreach” is a misnomer because the Property Clause explicitly grants Congress the power to regulate federal lands. Therefore, the BLM was simply enforcing lawful regulations. (There were also some weird arguments about Nevada gaining the lands when it became a state, but the Nevada Constitution explicitly provides that the lands would stay with the federal government).

    Of course, if Bundy somehow got his case to the Supreme Court, the Court may very well have concocted some new and heretofore unheard-of principle which overrides the Property Clause and gives Bundy the win. Such is the state of modern conservative “thought.”

  • Opie Elvis

    The obvious comparative experiment that Roberts unwittingly, and I say unwittingly because his goal was to create failure, set up will likely come back to hurt Republicans badly.
    People in Tennessee will see that their Red State brethren in Kentucky got a better deal. We’ll see hospital systems fail badly in rural areas in states that didn’t accept the expansion; here in NC some administrators are scared to death of the consequences.
    It may take awhile, there’s no question that the Republican bullshit machine will pump out explanations for the problems of failing to accept the expansion that are dishonest and devious, but eventually the consequences to the economies of the states that rejected the expansion will become undeniable. Eventually the coverage success stories will trump the bullshit so that only the most committed and deluded will hang onto their belief that the ACA is a disaster.
    Democrats have to find ways to highlight the successes. They’re going to have to find ways to run to not from the ACA. Telling the story of a stupid activist Roberts is important but I suspect the average person isn’t going to hear that nearly as well as a good narrative on how Obamacare is working and can be made to work better with incremental improvements.
    Roberts unnecessarily hurt a lot of people but he also set up a situation of obvious comparison that Republicans are bound to lose. Richard Hofstadter’s paranoid reactionary right may seem larger than it is, the influence of the paranoid style may appear broad but the truly committed political paranoids, the Nugents, Palins, Cruzes, and Bundyists are probably only ten percent of the population. They may temporarily be able to induce a collective stupidity on 45% of the electorate but eventually some degree of sanity will return.
    Hopefully the consequences of Roberts’ failure and the comparison it set up will be a source of awakening rather than something worse like a McVeigh sort of act of domestic terrorism.

    • Barry

      I’m not as optimistic; the right has shown massive ability to fool people on simple matters like what caused what.

    • KLG

      Three or four small community hospitals have closed in Georgia because they couldn’t “afford” to keep treating indigent patients without the Medicaid expansion. This is starting to sink into the granite-like heads of those affected.

  • NorthLeft12

    Seems to me that the SCOTUS gave the states the option of being both mean and stupid, or progressive and compassionate. It is a democracy you know, so it is not very surprising that about 47% of states chose option A.

    I am just flabbergasted at how this is playing out in the states. I mean….come on! Really?

    • joe from Lowell

      I find it difficult to believe the holdout states won’t cave. Nobody wants to see hospitals go broke and close in their own state, including plenty of strong, conservative-friendly business interests like doctors, health care companies, insurers, and local businesses.

      • Scott Lemieux

        And the money on offer means that for once that most of the vested interests will be lobbying hard for the progressive position rather than against it.

        • Denverite

          Yep. I’ve been in the room when the conversation has occurred. The not-really-secret is that it’s politically impossible to get Republican politicians to support expansion now because it would be “supporting Obamacare,” and it’s probably impossible in 2015 and 2016 because of the invariable ACA-bashing fest that will be the GOP primary, but almost everyone is optimistic that post 2016, Republicans will be free to take their money. In fact, the word is that a lot of GOP states are already planning for the eventual expansion.

      • Gwen

        After about 2016, the entire reason for being obstinate (hint: he’s black) will be gone, so I would expect fairly rapid adoption after then.

        Also, to add insult to injury, expect the red states to demand that the federal government meet a list of demands, most obvious would be extending the window in which the federal government picks up 100 percent of the cost.

        • joe from Lowell

          I expect there will be a big federal bailout of hospitals in those states coming down the pipe.

          Which is probably a good thing, all in all. They’re really going to need some health care dollars pumped in there.

          It’s going to be like the end of Elysium.

          • Gwen

            I didn’t see Elysium and please don’t spoil it for me.

            But in any event, as a Texan, I feel like my state government is holding me hostage.

            It would really really hurt if our state’s leaders prove to be incompetent negotiators.

            They better get us some sweet ransom munny, I mean some serious fat stacks, yo.

            • Karate Bearfighter

              I didn’t see Elysium and please don’t spoil it for me.

              Spoiler alert: Matt Damon finds the Statue of Liberty and realizes it was Earth all along!

  • I don’t really have an opinion on the conditional spending question. This is an area so far from my expertise that I really don’t want to say too much on the merits.

    But I can tell you that there’s a shitload of scholarship in this area, and a lot of people, including a lot of liberals, think that (1) it is a real problem and (2) the spending clause of the Constitution is not a plenary authority.

    When I was in law school, I remember reading some of it. We covered it in Con Law (and I had a pretty liberal Con Law professor), and it was seen as very much an open question in constitutional law.

    The basic problem is that most constitutional scholars do not, in fact, think that the spending power is supposed to be used as a lever to control state policy. Even Dole was pretty controversial. The spending power is about spending. Now, there’s a huge line-drawing problem here because as a practical matter, the federal government has become more powerful over time and does use spending to override state decisions.

    But this is not anything like “equal sovereignty of the states” in Shelby County. The idea that conditional spending cannot be used to override state decisionmaking is neither novel nor controversial.

    And no, Dole doesn’t resolve NFIB, because in Dole, they were taking a lot less highway funding away as compared to the Medicaid money being taken away in the Obamacare statute.

    I do agree that this sort of blindsided Congress, and might even agree that this is something the 7 justices should have taken into account in their ruling.

    • Gwen

      How does the amount of money govern the issue? Clearly it was enough to make a difference — pretty much every state (even Louisiana) ended up raising their drinking age to 21.

      By comparison to Dole, the *qualitative* changes being made by PPACA to Medicaid are fairly pedestrian — changing the eligibility threshold being the headliner.

      • The idea is that the more money Congress threatens to take away, the more coercion is occurring.

        To analyze this, you have to start at a starting point that Scott rejects, i.e., that there’s some limit as to the amount of coercion that Congress can apply to force states to enact policy changes. If you accept that, then the amounts of money at issue are relevant.

        • Hogan

          So the amount of coercion is directly measured by the amount of money? And beyond a certain amount the coercion becomes “fundamental” and therefore unconstitutional? How do you determine that amount?

          • I don’t know. How do you determine whether a search is reasonable?

            Line drawing problems are endemic in constitutional law. The fact that they exist doesn’t prove that the Constitution is being misinterpreted.

            • Hogan

              There are lots of factors involved in a search and seizure situation, and whether it’s reasonable involves weighing a lot of them. There’s only one factor involved in a dollar amount–too high or too low–so this turns out to be a case where a bright-line rule is possible (indexed for inflation, obviously). Go ahead. Make an offer and back it up with a constitutional argument. I’m not a professor giving you a grade or an appellate judge ruling on your decision; take your shot if you think there’s something to this.

              • The dollar amount is one consideration. Not the only one.

        • Nathanael

          It’s federal money; Congress can restrict its expenditure however it likes.

          Arizona was willing to refuse federal funds for years because Arizona didn’t like some program or other (I forget which one). States had the right to completely opt out of Medicaid, still.

          I don’t think any amount of money qualifies as “coercion” for a state government. It’s not like a person, who will starve if not given enough money.

    • Scott Lemieux

      There may be liberals who think that judicially enforced limitations on the federal spending power are a good idea. For the reasons laid out in this post an unrebutted by you, they’re obviously wrong; the arguments collapse on themselves unless you’re willing to go to a full-on neoconfederate/libertarian position. The federal government can spend money, it can place conditions on that spending, and the states don’t have an entitlement to existing spending. This combination of truths is dispositive. Any attempt to develop a coherent doctrine will be hopeless, and the potential for mischief is immense.

      And the percentages involved are beside the point. If 100% of the money was a problem, the original Medicaid would be unconstitutional.

      • Scott, I’m really not in a position to argue this with you, because it is NOT an area I have studied.

        But I do know enough about it, and remember the discussion about it in my Con Law class, to know that scholars, for the most part, completely dismiss your position (if I understand it correctly, i.e., that there are no limits on the power of Congress to condition spending except perhaps some outer limit in some extreme hypothetical case).

        That’s just not what the scholarship says the Constitution means. If I had my Con Law casebook with me, I would direct you to some of that scholarship. But it is out there, and this problem long predated NFIB v. Sibelius.

        • junker

          “I’m not in a position to argue with you, but you’re still wrong.”

        • Scott Lemieux

          to know that scholars, for the most part, completely dismiss your position

          I’m sorry, but I’m afraid your going to have to do better than uncited arguments from authority. (It also seems odd, given this alleged consensus, that the Supreme Court had never actually enforced any such prohibition until a decision nobody saw coming in 2012, and did so in a fashion so embarrassing you’re not willing to actually defend its reasoning.)

          • Denverite


            To help Dylan out. These authors are generally critical of the Medicaid expansion ruling. But they do cite commentators advocating more meaningful limits on the federal spending power. Just glancing through, the discussion starts around note 329 or so.

          • The Supreme Court certainly said the prohibition existed. Steward Machine Co. v. Davis and South Dakota v. Dole, while both upholding programs as non-coercive, both said that a spending program that actually coerced the states would be unconstitutional.

            Again, what you are doing is saying something that I *know* is wrong– the conditional spending doctrine is NOT made up from whole cloth, but is a real problem posed by the relationship between the spending power and limits on other congressional powers.

            But I’m not the person to talk to about all the specifics. I will look them up when I have time.

            • Scott Lemieux

              But I don’t know where we’re disagreeing. The Supreme Court has said there are theoretical limits but never ruled any of the countless examples of conditional spending unconstitutional prior to 2012. I have never said that the spending power is absolutely unlimited. I just don’t think there’s any serious chance that Congress will ever pass anything that is unconstitutionally coercive, and the Medicaid expansion shouldn’t have even been a close question under existing precedents.

              • Your last sentence may be wrong. My understanding is that existing precedents didn’t involve the extent of the funding strip in Obamacare. I don’t know for sure though; as I said, this is not my area of law.

                But my disagreement is with you characterizing this as the same as Shelby County, neoconfederatism, and “equal dignity of the states”. It isn’t that. This is a real doctrine, and one that both liberals and conservatives have advocated in the past.

                • Scott Lemieux

                  My understanding is that existing precedents didn’t involve the extent of the funding strip in Obamacare.

                  But the extent of the funding strip was relevant in other cases because the relationship between policies is indirect. Here, the only spending being threatened is Medicaid spending. If 100% per se is the problem, then the pre-ACA Medicaid was also unconstitutional. I can see how “you don’t get the money if you don’t pass some vaguely related policy” can be potentially unconstitutional, but how can “you don’t get the money if you don’t enact the policy” be unconstitutionally coercive? Congress had “threatened” a 100% cut if the states didn’t modify Medicaid countless times already.

    • Gwen

      And likewise, even if the SCOTUS wanted to preserve the dignitude of state legislatures (so as not to unduly prejudice their decisionmaking) there is no excuse to require continuing Medicaid-as-it-existed-in-2009 in perpetuity.

      An equitable resolution of the case would have said, “states can continue to participate in Medicaid for two or three years while they sort this out and transition either to (1) full participation in PPACA or (2) rejection of Medicaid participation.”

      If you’re going to re-write the law, at least do so in a way that is inherently self-limiting!

      • Gwen

        Cf. rules governing “blue penciling” of contracts, especially covenants not to compete.

      • As I said, I totally get the “blindsided Congress” point.

        One of the real problems with the Obamacare process, brought on by filibustering Republicans and Ted Kennedy’s death, is that the statute had to be enacted mid-process and without any way of correcting errors. And any large statute is going to have lots of errors that need correcting.

        So when the Supreme Court comes in and does this, it isn’t like the Northern Pipeline case where they blindsided Congress on Article III and bankruptcy. There you had a Congress that could fix the statute. Here, anything the Supreme Court does to mangle the statute is basically relatively permanent.

        I think that’s a real problem and was something that you can really argue the Court should have taken into account in NFIB v. Sibelius.

    • L2P

      The idea that conditional spending cannot be used to override state decisionmaking is neither novel nor controversial.

      As someone who works in grants a lot, can someone explain how spending conditions ever override state decisionmaking authority? Doesn’t the state always have control over it’s decision to say either “yes” or “no” to the federal funds?

      I didn’t think it was controversial for the Federal government to put minority ownership provisions in grants, for example. Or to require specific vendors. Or to require specific audit and cost control provisions.

      How did anybody who isn’t a member of the Federalist society decide this was controversial?

      • Scott Lemieux

        Doesn’t the state always have control over it’s decision to say either “yes” or “no” to the federal funds?

        Yes. And in the case of Medicaid it’s especially ridiculous — the “state policy” being “overriden” is one mostly funded by the feds in the first place.

      • How did anybody who isn’t a member of the Federalist society decide this was controversial?

        Simply put, because the spending clause power, if plenary, basically can be used to enact all sorts of outcomes that the Constitution would otherwise prevent.

        To get at the problem, instead of thinking of Scott’s weird hypotheticals, imagine a Congress that tried to use the spending power to force states to enact parental consent abortion laws or to capital punishment statutes. States that don’t do this lose all their health care funding or all their criminal justice funding, or whatever.

        Maybe your position is all of that is constitutional. But definitely the scholarship in this area has been that it is not, that the spending power can’t be used in ways that fundamentally coerce the states. And that’s not a “neoconfederate” position.

        • L2P

          What scholarship says that isn’t constitutional? Do you have a cite?

          I’m genuinely curious. Conditional limits on spending are routine. I have a hard time wrapping my head around the idea that the Feds can’t give Houston a grant for police equipment and say that it has to be used for telecommunications instead of firearms. Or that a highway grant has to be used for bridge repair, not the construction of new roads.

          I mean, I’d love it if that was the case. It’d be great to tell HUD we’re using the low-income housing money to give tax breaks to millionaires, but I haven’t seen any scholarship seriously questioning this.

          • Denverite

            You’re missing the point. No one is disputing that Congress can appropriate money to the states subject to conditions related to the purpose of that appropriation. The question is whether Congress can appropriate money subject to conditions unrelated to the purpose of the appropriate, especially when the conditions attach to an existing appropriation.

            In other words, it’s not “you have to use this money on roads if you accept it.” It’s “you have to move your state capital to a new city if you want to get any federal highway funds.”

            • Gwen

              I wonder if the Court should adopt a commercial-transactional approach. Because the way I see it, what we’re really talking about when we talk about conditional spending issues, is the same sort of concern that comes up with unconscionability / public policy issues in contracting. Again, why I make the reference to contract reformation.

              Could a willing seller and a willing buyer reach the terms proposed by PPACA, where the first party pays 100 percent of the cost for the second party to expand coverage to its dependents? In what universe would that be deemed to be *not* a commercially-reasonable transaction?

              • Gwen

                Furthermore, I’d go on to argue that the Court’s substitution of a federalism analysis instead of treating this as a business transaction between equal parties, infantilizes the state governments and actually is destructive of democracy in the long run.

                The welfare state *is* creating a culture of dependence — state legislators are dependent on federal dollars to provide services to their constituents, but go off and bitch about the federal government in order to win their votes.

              • Denverite

                Because it wasn’t 100%, it was 90-95%, and it was done in a way that (arguably) fundamentally changed Medicaid in most states.

                I’ve had this argument a billion times. I’m not going to again, especially because at the end of the day I’m sympathetic to Scott’s ultimate position. But expanding Medicaid from a categorical-eligibility based program to a purely income based eligibility program is a Big Deal. It’s probably the most revolutionary part of the ACA, and possibly the biggest expansion of the government health care umbrella since the late 60s. It’s far bigger — for example — than lowering Medicare eligibility to 55 or whatever.

          • I can’t do this right now, but I’m going to try to locate some of the pre-NFIB v. Sibelius scholarship on this issue.

            As I said, my objection to Scott is basically that I think he’s treating something that is a pretty standard Con Law interpretation as the equivalent to the made-up-out-of-whole-cloth neoconfederate Shelby County “equal dignity of the states” rationale.

            I never heard a word in law school about equal dignity of the states. I did hear a fair amount about constitutional limits on conditional spending. It’s not the same thing.

            • Denverite
              • Kathleen Sullivan’s Unconstitutional Conditions article from the Harvard Law Review in 1989 is apparently the go-to article. That’s the one my Con Law professor excerpted in the course materials.

                A more recent treatment of it is Baker and Berman in the Indiana Law Journal in 2003. Lynn Baker is an expert on the spending clause.

        • Scott Lemieux

          To get at the problem, instead of thinking of Scott’s weird hypotheticals, imagine a Congress that tried to use the spending power to force states to enact parental consent abortion laws or to capital punishment statutes. States that don’t do this lose all their health care funding or all their criminal justice funding, or whatever.

          So, rather than my “weird” hypotheticals, you use similar hypotheticals that make the same point and have no chance of ever being enacted. Again, the federal spending power may not be literally plenary, but the chances of Congress ever passing legislation that legitimately threatens the structure of federalism are pretty much nil. The Medicaid expansion isn’t even a close question.

          • You really think there’s “no chance” of Congress trying to compel the states to enact stricter abortion laws or capital punishment?

            Look, at some point, this is just you declaring that none of the parade of horribles can ever come to pass. That’s an ipse dixit. Lots of scholars have worried about the parade of horribles, and they did it long before NFIB v. Sibelius. You are simply out of your element in comparing this to Shelby County.

            Are you acquainted with any honest, non-hackish Con Law professors? Give one of them a call and ask whether this issue is comparable to equal dignity of the states in being made up out of whole cloth. I doubt they will say it is.

            • By the way, in looking this up, it looks like Lynn Baker uses the capital punishment hypothetical as an example of where Congress could abuse its spending power. So at least one other person has thought of this.

              • Scott Lemieux

                So, just to be clear, you really think it’s plausible that Congress will pass legislation making 100% of criminal justice spending contingent on states enacting capital punishment? Keep waiting.

                • Why does it have to be 100 percent? Isn’t it enough that I think it is possible that Congress could make a serious attempt to coerce states into enacting the death penalty?

                  You are slicing the salami really thin here. All I am really saying is this isn’t anything like Shelby County. There’s no such thing as equal dignity of the states, and no parade of horribles that can ensue if that doctrine is not enacted. Whereas here, there’s a long line of scholarship that says that conditional spending can be unconstitutional, and there are definitely coercive spending programs that could be problematic.

                • Scott Lemieux

                  Well, the amount is important, because if Congress were to simply offer mild incentives for states to adopt capital punishment, I don’t see the constitutional problem.

            • Gwen

              Are you acquainted with any honest, non-hackish Con Law professors?

              > implying non-hackish Con Law professors exist.

              • Gwen

                And yes, it is my view that the better part of constitutional law is politics, billed at $500 per hour.

                • Denverite

                  This is silly. There are a ton of criminal and (other) government lawyers who do a lot of constitutional law work. Like 50% plus.

                • Gwen

                  If you mean administrative law or criminal procedure, fine, but those are usually treated as distinct disciplines.

                  Ninety percent of lawyers don’t care about the First Amendment and I’d say 99 percent don’t care about the inverse commerce clause or conditional spending issues.

                  Moreover, it’s an area of law highly inclined toward outcome-based decision making.

                • Denverite

                  Yes, I was thinking suppression or sentencing stuff for criminal attorneys, or 1983 type stuff for civil government attorneys.

                  If you’re narrowly defining “constitutional law” to be First Amendment or separation of powers cases, then I agree that there isn’t a ton of that sort of work out there (though I’ve litigated one major First Amendment case, and another major spending constitutionality case). But that seems to be an awfully narrow view of what “constitutional law” is in my book.

            • Scott Lemieux

              Look, at some point, this is just you declaring that none of the parade of horribles can ever come to pass.

              Well, if they ever do, we can deal with it then.

              You are simply out of your element in comparing this to Shelby County.

              As I say in the post, they are not precisely equivalent. You are dancing with a strawman.

              And I note again that in several posts your arguments have have solely been arguments from authority; you have not defended the actual logic of Sebelius, which speaks for itself.

              • I’m not going to defend NFIB v. Sibelius, because I don’t defend or attack decisions in areas of law I don’t know enough about. (For the same reason, I don’t say very much in Fourth Amendment threads around here.)

                I take my actual areas of legal expertise very seriously. If you say something dead wrong about the First Amendment, international human rights law, or entertainment litigation, I’m going to call you on it.

                But I don’t think the conditional spending debate is anything like Shelby County. Not in any respect. This is a real debate, and is not a Roberts ipse dixit.

                • Scott Lemieux

                  It’s like Shelby County in that 1)it is trumping an explicit grant of congressional authority without any explicit textual authority, and 2)the logic defending the holding is a complete disaster. The argument that there’s an implicit limitation is certainly stronger, but as applied in Sebelius it’s a complete mess.

        • Nathanael

          Arizona refused all the federal health care funding for several years IIRC. And I think there was some state which refused all the highway funding.

          I don’t see the coercion.

  • Gwen

    So this happened.


    Too bad red state health care providers can’t sue their state legislatures / governor for being f***ing retards.

  • kc

    If I understand this correctly: If you live in one of those states with asshole governors who have not opted for expanded Medicaid, and your income is 130% of the poverty level – you don’t get Medicaid, of course, but you also don’t get subsidies? Is that right? So these people are just fucked?

    • kc

      Never mind, just answered my own question. Yep, these people are fucked.

      • Anstis

        130% of poverty….is not poverty.

    • Denverite

      Yes. Plus there’s no more federal funds to reimburse hospitals for treating poor nonpaying patients because the ACA cut that program on the theory that it’s not necessary if poor people are now on Medicaid.

      Also, if you are a childless able-bodied adult, you aren’t eligible in most non-expanding states even if your income is literally $0.

      • Gwen

        Indeed. After law school, when I was delivering pizzas, I looked into whether I could get on Medicaid. The answer, as far as I could tell, was only if I was receiving other public assistance. So I looked up if I was eligible for food stamps, and it looked like the answer was “no.”

        Because I still had my dignity, I never talked to a case worker about this. But frankly I have no idea how a single, non-disabled, childless working person could get anything at all of value from the State of Texas.

        (I did get pittance unemployment for a month a couple years ago when I was laid off from my first software industry jerb).

        • Anonymous

          You should just shun jerbs altogether.

          That’ll show ‘m.

        • Anonymous

          …a single, non-disabled, childless working person could get anything at all of value from the State of Texas.

          And exactly *WHY* should this kind of person get anything?

          No kids

          Why exactly should I pay your freight, again?

          • Malaclypse

            One nym per thread, Jennie. More is just mooching.

          • jim, some guy in iowa

            paying a portion of their freight is cheaper for you in the long run, you fucking idiot. when they go broke under the weight of their medical bills, and the hospital writes them off, it comes back on you and me

          • Anonymous

            Oh yeah…and a law degree…

            Poor, poor person…

            • jim, some guy in iowa

              you should take a look at the ‘twenty years of schooling’ post

  • doc martin

    It’s pretty entertaining to see the ACA proponents blame everyone other than those who wrote the law.

    This is what happens when blatant disregard for the constitutionality is never considered when pushing for a socialist agenda.

    Blame yourselves

    • doc martin

      And just understand when you rag of John Roberts, he did you a solid.

      As written, the ACA was a penalty. Yes, he rewrote the law…and called it a tax. As written, the mandate also would have been found unconstitutional.

      • Lee Rudolph

        Shoemaker, stick to your last.

        Or just stick it.

        • Anonymous

          Yeah, that’s what I do, also, when I have no answer…just go personal. Yeah, it’s the messenger that is to blame for my lack of principles..

          • Malaclypse

            You fucked up and switched nyms again.

    • Malaclypse

      This is what happens when blatant disregard for the constitutionality is never considered when pushing for a socialist agenda.

      English, fucker, do you write it?

    • Opie Elvis

      Please point to the Constitutional clause or amendment that makes laissez faire capitalism the state religion.
      Then point to the politics or philosophical definitions that are so rigid that capitalism and socialism are of such exclusive purity that no element could be remotely similar or that all policy is wholly one or the other.

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