I have a review of Laurence Tribe and Joshua Matz’s new book Uncertain Justice in the Washington Spectator. The most striking argument in the book is an attempt to defend the re-writing of the ACA’s Medicaid provisions by linking it to other federal spending coercion cases (like the upholding of the Solomon Amendment.) You may be surprised to find out that I do not find this convincing:
Their most original argument concerns the Court’s deciding to rewrite the Affordable Care Act to make its extensive Medicaid expansion optional (rather than making all Medicaid funds contingent on accepting the changes). Seven justices, including Democratic nominees Stephen Breyer and Elena Kagan, voted for this unprecedented limit on the federal spending power. Some observers (including myself) have interpreted Breyer’s and Kagan’s votes as strategic, doubting that either would have been the swing vote to limit the expansion but wanted to ensure that Roberts would not vote to strike it down. Tribe and Matz not only reject this but try to make a liberal case for the Medicaid holding. Their argument ties the Medicaid decision to a line of cases dealing with the use of the spending power to limit certain forms of speech. The Court’s doctrine in this area has been erratic, striking down a provision that required groups seeking AIDS funding to explicitly oppose prostitution and sex trafficking, but upholding (for example) provisions making educational funding contingent on giving military recruiters access to campus and preventing recipients of certain federal funding from providing abortion counseling. Tribe and Matz advocate for more of the former and less of the latter, and see the Medicaid decision as being part of a tradition of limiting the use of the federal power to coerce.
This argument is intriguing, but also unconvincing. There is a very big difference between coercing individuals—who have explicit free speech rights—and coercing states, who do not. Despite these valiant efforts, the defense of the Medicaid expansion collapses on itself—it would be clearly constitutional for Congress to have simply created the 2013 version of Medicaid from scratch, and it would also be constitutional for Congress to repeal the program entirely, so it makes little sense to say that it’s unconstitutional for Congress to make existing Medicaid funding contingent on accepting new and more generously funded conditions.