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A Disgrace Even By Roberts Court Standards

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The effects of John Roberts re-writing the ACA’s Medicaid expansion are felt in Mississippi:

Even the law’s vaunted Medicaid expansion, meant to assist those too poor to qualify for subsidized private insurance, was no help after the U.S. Supreme Court ruled that states could opt out. Bryant made it clear Mississippi would not participate, leaving 138,000 low-income residents, the majority of whom are black, with no insurance options at all. And while the politics of Obamacare became increasingly toxic, the state’s already financially strapped rural hospitals faced a new crisis from the law’s failure to take hold: They had been banking on newly insured patients to replace the federal support for hospitals serving the uninsured, which was set to taper off as people gained coverage. Now, instead of more people getting more care in Mississippi, in many cases, they would get less.

“We work hard at being last,” said Roy Mitchell, the beleaguered executive director of the Mississippi Health Advocacy Program, when we met in Jackson. “Even a dog knows the difference between being tripped over and being kicked.”

This reflects an infliction of pain and suffering and death than was eminently avoidable. If you’ll forgive me for reiterating, it’s nearly impossible to overstate how terrible this decision was. It would be one thing if this denial of access of medical care to millions of people was enforcing some explicit constitutional provision, but it wasn’t. If this judicially invented limitation at least protected some meaningful individual liberty interest it might be a little more understandable, but it doesn’t. At best, the lives of millions of people have been made worse — with consequences up to and including death — in order to prioritize inferential states’ “rights” over human rights.

But here’s the kicker: Sebelius does not even provide any significant protection for state autonomy. Congress remains free to create a Medicaid program that requires everyone up to 138% of the federal poverty line to be covered and makes all Medicaid funding contingent on meeting these conditions.  It simply would have to structure it by formally repealing the previous Medicaid and replacing it with “Medicaid II: The Quest For Ron Paul’s GOLD,” thus evading the Supreme Court’s newly minted requirement that existing funding can sometimes be made contingent on accepting new conditions and sometimes can’t and we’ll let you know ex post facto whether this completely arbitrary line has been crossed. Congress can pursue identical means with identical ends; the ACA’s constitutional Medicaid expansion is not different in any substantive way whatsoever from the hypothetical constitutional Medicaid II. The state interest being protected here doesn’t even rise to the level of being trivial.

The fact that so much misery was created for so little should permanently shame the justices who voted for it. It’s judicial review at its least defensible.

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  • c u n d gulag

    “Even a dog knows the difference between being tripped over and being kicked.”

    Doesn’t say much for the voters of that state, does it?

    • rea

      Doesn’t say much for the voters of that state, does it?

      Except, of course, the ones doing without health coverage are probably not the ones voting for the Rs.

      • c u n d gulag

        True.

        They don’t mind getting sick and dying if some brown people get sicker and die earlier.

      • ChrisTS

        But, are they voting?

        I’m pretty close to despair when I look at the current polling data. What the F is wrong with us? Everyone hates the Republicans, but most of the ones running will win.

        Sorry. Arthritis flare up and misogyny on the web has put me in a bad mood.

      • Joe_JP

        poor whites have for years voted against their interests

    • Phil Perspective

      Sure, blame the voters and not the crappy politicians of the state.

      • humanoid.panda

        90% of Mississippi Whites vote Republican. Do you think that if Barney Sanders rather than some Blue Dog was the Democratic Senator there, that figure would have budged significantly?

  • CP

    I didn’t fully process this until I turned 26 in the state of Florida and went looking for health insurance. Thank God, the university has a moderately affordable plan for students, which I still am, because if not…?

    I first went to the ACA plans, where I found out that you had to make X amount of money in the first place to be eligible for subsidies for the plans available on the exchange. Those who made less than that, it was assumed, Medicaid would pick it up. Except Medicaid? As I found out, you had to have kids or some family obligation of that nature to be eligible – having an income of absolute zero is still not considered enough of a financial hardship for the great State of Florida to lend a hand.

    There is no hole in hell deep enough for the Roberts Court, or for the Randroid scum who run Florida.

  • nocomment

    There is no hole in hell deep enough for the Roberts Court, or for the Randroid scum who run Florida.

    A+

    • Pat

      How about the Politico headline writers who blame Obamacare for this travesty instead of its opponents?

  • Incontinentia Buttocks

    Totally agree about the awfulness of this decision, but I don’t want to let the rejecting state governments off the hook either. Sure the decisions of states like Mississippi (and Oklahoma, where I live) don’t involve absurd readings of constitutional law. But each of these state-level decisions is as politically evil as the Roberts’ court ruling. At best they’re driven by empty ideology, at worst by an affirmative desire to harm the state’s most vulnerable citizens. That twenty states decided to turn down Medicaid expansion funds — money for which our states’ taxpayers are continuing to pay — is another excellent instance of the vacuity and inhumanity of contemporary “conservatism.”

    • Jamelle Bouie tweeted up a storm about the Politico article and Mississippi’s legacy of white supremacy; I rounded them up here. Hoping he does an article based on them.

    • Pat

      Let’s not forget that the states turning down the expansion are increasing their spending on Medicaid, because people who were previously eligible are now enrolling. Also, I believe Obamacare changed some other aspects of eligibility (like covering certain diagnoses), forcing these states to pony up more money. In contrast, the states that accepted the expansion are seeing their costs drop.

      It’s almost like when someone offers to cover a new expense for you, you save money!

    • Joe_JP

      True. A value of the unrescinded by court action ACA rule is that a national body avoided this race to the bottom for bad reasons by setting a national floor tied to obtaining federal benefits. A case where well being was promoted by national government over simple-minded federalism.

  • DrDick

    If the conservative wing had any shame, they would all have committed seppuku long before Sibelius.

    • efgoldman

      If the conservative wing had any shame, they would all have committed seppuku long before Sibelius.

      When little sociopath boys and girls decide to grow up to be conservative RWNJs, they go to the secret TeaHadi special place and have their shame, compassion, embarrassment, common sense and anything else that might allow them to live harmoniously in civilized society, removed.
      It’s kind of like a bar mitzvah without the fountain pen.

      • ChrisTS

        Most excellent.

      • MAJeff

        When little sociopath boys and girls decide to grow up to be conservative RWNJs, they go to the secret TeaHadi special place and have their shame, compassion, embarrassment, common sense and anything else that might allow them to live harmoniously in civilized society, removed.

        I think we call some of those places “Evangelical Megachurches.”

        • Pat

          Don’t get me started!

      • dfinberg

        Instead of a bar mitzvah, it’s more an anti-bris.

        • Hogan

          Or in some traditions, a reverse exorcism.

        • DrDick

          They reattach the foreskin?

  • Murc

    You know, I’m an enormous believer in procedural legitimacy. The Bush years radicalized me in this regard. I am inherently sympathetic to the idea that things that should be done aren’t getting done because they weren’t being done in the proper way.

    And even I think that the Roberts Court was jaw-droppingly mendacious on this one.

    I’ve said it before, and I’ll say it again; John Roberts is a judicial tree-girdler. He wants a substantial part of modern jurisprudence and indeed modern law to die. He just doesn’t want the blame for killing it. Hence, you get batshit stuff like this where he tries to thread that needle.

  • patrick II

    The fact that so much misery was created for so little should permanently shame the justices who voted for it. It’s judicial review at its least defensible.

    I think the justices who voted against it are the ones to blame, not Four of the five who voted for it. Excluding Roberts himself, four voted for it because it was the best deal they could get.

    The four who voted against it voted that way ostensibly because they might be forced to buy asparagus some day (the FOX generated argument Scalia actually used describing the slippery slope as applied to ACA), but actually voted against, not just the medicare provision but the whole ACA, because they are the type of people who will let tens of thousands die every year because they can.

    • Ahuitzotl

      what?

    • Scott Lemieux

      There are words here, but they need to be arranged in a different order.

      • Lee Rudolph

        they need to be arranged in a different order

        ACA ACA actually actually against against against applied are are argument as asparagus be because because because because best blame, but but buy can could day deal describing die every Excluding five for for forced Four four four FOX generated get himself, I it it it it it just justices let medicare might not not of of of ones ostensibly people provision Roberts Scalia slippery slope some tens that the the the the The the the the the the they they they they think thousands to to to type used voted voted voted voted voted voted was way who who who who whole will year

        • Ahuitzotl

          at least more euphonous while retaining all the sense and meaning of the original

      • Incontinentia Buttocks

        What’s wrong with what patrick II wrote? He’s saying that Alito, Scalia, Kennedy, and Thomas — who voted against the majority opinion — are more responsible for the judicial mess you describe than are Breyer, Sotomayor, Kagan, and Ginsburg who voted for it. That seems perfectly obvious to me.

        • Scott Lemieux

          Well, Kagan and Breyer at least nominally voted to re-write the Medicaid expansion; I’m not sure what he’s trying to argue here.

          • patrick II

            What I am arguing is that four of the five justices who voted for the decision to cripple medicare did so because they had to to keep the ACA as a whole intact. Breyer, Sotomayor, Kagan, and Ginsburg voted for the decision to cripple medicaid because otherwise Roberts would have voted with Scalia, Kennedy, Alito, and Thomas to scuttle the entire ACA bill.
            The original post states the justices who voted for crippling Medicaid should feel shame them is exactly the opposite of true.
            The judges who voted to cripple Medicaid expansion did so only in a political response to blackmail by Roberts. This wasn’t a judicial decision by the liberal judges but a political one.

            • bobbo1

              I totally got this the first time – we need to spare our hatred for the 4 wingnuts who would have destroyed the ACA outright, and the 5th who spared it in exchange for the privilege of gutting the Medicaid expansion.

              • ochospantalones

                The confusion stems from Patrick getting the facts wrong (and not using people’s names). He’s relying on the assumption that Scalia, Thomas, Kennedy, and Alito voted against ruling the medicaid expansion unconstitutional, but this is not true. The decision was 7-2 on this issue, with only Ginsburg and Sotomayor finding the expansion to be constitutional. To reach Patrick’s intended point (be angry with the conservatives) requires ignoring what he actually said, which is that we should be angry at those who opposed finding the medicaid expansion to be unconstitutional. We should not be angry at those people, because those people were Ginsburg and Sotomayor and they were correct.

                • patrick II

                  You are right. I did not realize that the medicaid and aca were two separate decisions, I thought it was all one.
                  So by commenting I was embarrassed, but learned something new. A fair trade-off.

            • Hogan

              Breyer, Sotomayor, Kagan, and Ginsburg voted for the decision to cripple medicaid because otherwise Roberts would have voted with Scalia, Kennedy, Alito, and Thomas to scuttle the entire ACA bill.

              Ginsburg and Sotomayor voted to uphold the Medicaid expansion as written.

            • Denverite

              What I am arguing is that four of the five justices who voted for the decision to cripple medicare did so because they had to to keep the ACA as a whole intact.

              *facepalm*

              Medicaid, not Medicare. And seven justices voted in favor of the coercion theory.

              • patrick II

                Yeah, and I wrote Scalia’s justification for gutting the ACA as asparagus, but it was broccoli. So, wrong there too.

  • timb

    In Indiana, Mike Pence, future candidate for President, declined Medicaid so as not to appear to take things from you know who. when the hospitals complained, he designed a plan where the working poor would have to pay monthly fees (because Hoosiers don’t want hand-outs, ya know), but HHS rejected it.

    Simultaneously, he took Indiana’s Medicaid law, which allowed Indiana to use Federal Disability guidelines to place the disabled on Medicaid, and gutted it. He changed to a system which mirrored SSA’s disability program, which tossed thousands off of Medicaid. The website says they did it to save 35 million in 2014 and more in the future!

    Folks in Kentucky, Illinois, Ohio, and Michigan can get Medicaid by having a beating heart and low income. Folks in Indiana can’t get it even if they’re disabled (it takes years for SSA claims to go through).

    Personally, I hate Pence more than Roberts, because all Roberts did evil by omission. The Christian Mike Pence is screwing Hoosiers to serve his own ambition, just like Jesus said

    • Incontinentia Buttocks

      I took more than omission to invent doctrine to cripple Medicaid expansion. But I see what you’re getting at: what Roberts did was fairly abstract compared to what governors like Pence have done. And plenty of commentators were naive enough to believe that, when the ruling in Sebelius came down, no governor would be so craven or crazy as to turn down millions of dollars to improve the health and well-being of his or her citizens (and pump money into his state’s economy).

    • Pat

      You know, maybe we’re looking at this the wrong way. Sure, there’s lots of suffering, people dying, losing their homes, their savings, their dignity so that conservatives can look good on Fox TV….. But without Obamacare, they would have likely had the same fate. It’s not like liberals can sway Pence’s decisions.

      But the voters can. Kansas is turning purple. So is Georgia. Maybe we can get to a f%%king turning point on this….

  • Denverite

    I’m sorta-kinda friends with someone who is reasonably privy to the thought processes of one of the plaintiffs in Sebelius. (I’ll leave it at that.) The really funny thing is that according to my source, they didn’t think there was any chance in hell at prevailing on the coercion theory.

    • And rightly so, because it was a stupid-ass theory.

      • timb

        you said “was” instead of “is”

    • Joe_JP

      Randy Barnett, as I recall, gave it something like 30% odds.

      To be fair, I guess, Charles Fried thought the Commerce Clause argument muy bogus, but actually took took this one seriously. Not sure of his belief that it actually would go this way though.

  • Gwen

    How many people have to be sacrificed on the alter of pointless formalism?

    These are one of the debates that will surely be with us for as long as our Republic lasts.

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