Home / General / Is There A Good Liberal Defense For the <i>Sebelius</i> Medicaid Holding? [SPOILER: No.]

Is There A Good Liberal Defense For the Sebelius Medicaid Holding? [SPOILER: No.]

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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.

 

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  • For me the most convincing argument is the “recreate from scratch” argument. If there’s no question that congress can achieve the precise “coercive” pressure by a slight variant (even if that variant is technically or politically infeasible), then c’mon. And does anyone think the pressure would be less if congress said “join up for the new Medicaid cause the old goes away)?

    • Denverite

      See below.

  • Origami Isopod

    Justice Scalia “has used his wit, erudition and rhetorical talents to leave an indelible mark on our jurisprudence.”

    Well, to be fair, that could be taken in more than one sense.

    • rea

      They forgot to mention his bowels.

      • Origami Isopod

        + [number] 2

    • joe from Lowell

      Yeah, that reads sort of like the quotes from reviews of bad movies that are chosen because they almost sound like compliments.

      “…explosive…”

      “….highly stylized…”

      • Snarki, child of Loki

        and the ever popular:

        “…offbeat comedy…” (i.e., “not funny”)

      • Hogan

        “You will be lucky to get this person to work for you.”

      • Schadenboner

        “Causes surprisingly little intestinal cramping!”

  • Denverite

    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.

    I’ve never found this argument super convincing. The law is full of these formalistic distinctions where something is permissible if structured one way but impermissible if structured another, even if the two structures are functionally identical. Take the mandate, for example. That entire part of the decision turned on whether it was called a tax or fine/penalty, which is mostly a semantic point.

    So yes, it’s entirely possible that we live in a world whereby Congress could have repealed the Medicaid Act of 1965 and replaced it with the Medicaid Code of 2010 and the two are identical except for Medicaid expansion, and that’s OK, but Congress couldn’t threaten all of a state’s Medicaid funding if they didn’t radically expand.

    • Scott Lemieux

      he law is full of these formalistic distinctions where something is permissible if structured one way but impermissible if structured another, even if the two structures are functionally identical.

      Except, of course, that for such formalistic distinctions to be convincing they need to be based on some specific textual command. In this case, the alleged restriction on the power of Congress is a vague “non-coercion” principle inferred from the structure of the Constitution. The fact that the changes to Medicaid that were struck down are no less coercive than changes that would unquestionably be constitutional should therefore be dispositive in this context. You can’t hide behind formalism when 1)the formal distinctions are being invented an ad hoc basis and 2)make no sense given the values that are allegedly being protected.

      So yes, it’s entirely possible that we live in a world whereby Congress could have repealed the Medicaid Act of 1965 and replaced it with the Medicaid Code of 2010 and the two are identical except for Medicaid expansion, and that’s OK, but Congress couldn’t threaten all of a state’s Medicaid funding if they didn’t radically expand.

      Well, we do live in this world, but that doesn’t mean that the logic makes any sense.

      • Denverite

        I think the response to this would be that it isn’t so much the degree of coercion as opposed to the type. Offering a state boatloads of money to participate in Medicaid is hugely coercive, but it’s largely OK. Telling a state that it will lose 0.1% of its highway funds if it doesn’t move its capital to a city with a more accessible airport (grrr, stupid Springfield) isn’t very coercive at all, but it’s probably not kosher.

        • Murc

          Except that we tell states they will lose all their highway funding if they don’t do what the DOT says all the time, and that passes muster.

        • Snarki, child of Loki

          only because the location of the capital doesn’t have much of anything to do with highways. Unlike, say, passing laws to reduce DUI accidents.

          Your main distinction seems to be between “offering more money” and “removing money they already get”. But unless the states have a valid ongoing claim on the US Treasury (say it softly, an ‘entitlement’), then the distinction is moot.

          Unless, of course, your name is John ‘lawless’ Roberts, in which case you can do whatever the fuck you want, law, precedent and Constitution be damned.

          • Denverite

            I’m not distinguishing between anything. I’m trying to explain why Scott’s argument — that because Congress could have enacted a functional equivalent to Medicaid expansion that would have been just as coercive, that means that Medicaid expansion couldn’t be impermissibly coercive — isn’t persuasive. The reason is that “enroll in this new Medicaid program and we’ll give you boatloads of money” and “fail to expand your program and we’ll take away all of your Medicaid money” are different types of coercion, even if they net effect is the same.

            (And, by the way, I’m not saying that “do this or we’ll take away money” is impermissible coercion. In some cases — the Dole scenario, for example — it’s pretty clearly not. I’m not even saying it was impermissible wrt Medicaid expansion. I believed, and still believe, that that part of the decision was wrong but understandable, and the people who portray it otherwise are either being disingenuous or they don’t understand how radical Medicaid expansion was.)

            • Scott Lemieux

              The reason is that “enroll in this new Medicaid program and we’ll give you boatloads of money” and “fail to expand your program and we’ll take away all of your Medicaid money” are different types of coercion, even if they net effect is the same.

              1)you still haven’t explained why the distinction is constitutionally meaningful. The tax/penalty distinction might be dumb but it has an actual textual relevance. This difference is constitutionally irrelevant.

              2)Your argument also implies that repealing Medicaid altogether would be unconstitutionally coercive, which can’t be right.

              • Denverite

                1.) The distinction is relevant because it explains why the argument that Congress could have done the exact same thing as expansion in a functionally identical way, and therefore expansion couldn’t be coercive, isn’t very convincing. That only works if you view the carrot and the stick as identical. If you don’t — and a lot of people don’t, including (apparently) Roberts — then 2010 Medicaid expansion isn’t the exact same thing as the New Medicaid Act of 2010.

                2.) That’s just silly, and you know it. Coercion means that you’re trying to get someone to do something. Flat out repeal doesn’t do that.

                • Isn’t the alternative that’s functionally identical is repealing old Medicaid and then replacing it with new Opt In expanded Medicaid.

                  How isn’t that coercive? Actually, how isn’t it coercive in precisely the same way?

                  Do you mean we could just repeal Medicaid but never replace it? That seems wrong.

                • Denverite

                  How isn’t that coercive? Actually, how isn’t it coercive in precisely the same way?

                  It is coercive, it’s just not coercive in the same way. In trw, Congress used a stick. In the hypothetical New Medicaid Act of 2010 world, it would be a carrot. This gets back to my original point. Yes, they’re virtually functionally identical, but that phenomenon comes up in the law all the time.

                  Do you mean we could just repeal Medicaid but never replace it? That seems wrong.

                  No. I mean quite the opposite. If we had repealed and replaced Medicaid IN THIS CASE it would have been acceptable.

                • I still don’t get it.

                  The mandate is named a penalty but functioned enough as a tax that we can construe it that way.

                  Why can’t we regard the expansion as a functional repeal plus new program?

                  I’m not saying that this works in every case but in this one it seems really a nominal difference.

                • Denverite

                  Because that’s not what it was. It was functionally the same, sure, but that’s still not actually the same.

                • Ok, there’s two issues here:

                  1) Ontological: Are these really not the same?

                  2) Statutory construction: Should we interpret these the same even though they aren’t?

                  Let me grant that they aren’t, ontologically, the same. I don’t really believe that, but ok.

                  But then why shouldn’t we construe them as the same here? I mean, it’s a possible construal, not a very complex or far fetched construal, and it preserves the law in a reasonable way. Functionally, it adds no new power. It doesn’t open up the can of worms we have now.

                • Note, I really don’t get the ontological difference. At least that it makes a difference. Either such coercion is legit or it isn’t. It’s hard to believe that we would let a “Will no one rid me of this meddlesome priest” style euphemism be a systematic way to avoid being blamed for giving the order to kill (and that one is a *lot* less exact a match).

                • Scott Lemieux

                  That only works if you view the carrot and the stick as identical. If you don’t — and a lot of people don’t, including (apparently) Roberts — then 2010 Medicaid expansion isn’t the exact same thing as the New Medicaid Act of 2010.

                  Well, no. To the extent that the theory has any bite, the point is to protect state sovereignty from coercion. If the constitutional and allegedly unconstitutional programs are functionally identical, there’s no preservation of state sovereignty. Neither you nor the majority have explained why the distinction between the “carrot” and “stick” is constitutionally relevant. (Not surprisingly, since the distinction was cooked up solely to allow the court to re-write this particular statute.)

                • To echo Scott (and myself):

                  Stick: We will end your Medicaid if you don’t join Medicaid+

                  Carrot: We ended your Medicaid, sucker! Oh, by the way, we have this shiny new delicious Medicaid+ for you to join that puts all your old Medicaid stuff back. See, carrot!

                  I’m pretty sure that applying the stick before offering the carrot doesn’t mean you didn’t apply the stick :)

                • Or how about this one.

                  Suppose we structure the program so that regular Medicaid ends in 2 years, but you can join Medicaid+ now and it will continue after those 2 years.

                  All carrot?

                • Denverite

                  These all go back to my original point. Congress could have structured the Medicaid portion of the ACA like this, and it probably would have passed muster. It didn’t. It just point blank said states had to expand Medicaid.

                • Ok, but then this leads back to the interpretation question: If it quacks like a replacement, why not interpret it as a replacement?

                  The mandate was labeled as a penalty but interpreted as a tax (as I understand it). What’s the difference?

                  Note that we’re not just talking broad functional equivalence (i.e., achieving the same ends) but pretty fine grained functional equivalence. That is, literally everything could go precisely the same way except that instead of “extend” we said “abolish and replace with though all old structures can continue as is”. I don’t see any difference in the coercive structure between the two. I mean, it’s not just that the states are equip powerless to resist, but no one would think that the later language changed anything.

                • Brien Jackson

                  Except all of this seems completely superfluous to me: “Medicaid” is a program that’s designed by Congress, and Congress gets to set forth the requirements states have to comply with in order to qualify for federal funding. That is to say, Congress gets to define what the term Medicaid is. Denverite’s argument that Congress can make small changes to the definition, but not big changes to it, doesn’t have any basis in Constitutional theory or separation of powers at all.

                • Denverite

                  You forgot the “with notable exceptions” caveat.

                • Brien Jackson

                  Such as?

                • Denverite

                  Sebelius

                • Brien Jackson

                  Really?

                • Denverite

                  I mean, it does exist.

                • Brien Jackson

                  Well, so does Shelby County. So what? Citing John Roberts’ hackery to justify John Roberts’ hackery does not strike me as a compelling argument, and certainly doesn’t make a compelling Con law argument at all.

                • Denverite

                  If someone said that there was no constitutional basis or theory holding that the Civil Rights Act preclearance requirements are unconstitutional, it would be perfectly appropriate to cite Shelby County. It’s not defending the case or agreeing with it. It’s pointing out binding authority supporting the point in question.

                • Scott Lemieux

                  Stick: We will end your Medicaid if you don’t join Medicaid+

                  Carrot: We ended your Medicaid, sucker! Oh, by the way, we have this shiny new delicious Medicaid+ for you to join that puts all your old Medicaid stuff back. See, carrot!

                  I’m pretty sure that applying the stick before offering the carrot doesn’t mean you didn’t apply the stick :)

                  Right. In addition to its many other problems, this argument doesn’t even provide any meaningful protection for state sovereignty. The next time Congress wants to do something like this, all it has to do is formally repeal the existing program and pass an entirely new one. There is not the slightest meaningful difference between these two actions in terms of state autonomy. Hence, the constitutional distinction invented for this case is meaningless.

                • Scott Lemieux

                  Citing John Roberts’ hackery to justify John Roberts’ hackery does not strike me as a compelling argument, and certainly doesn’t make a compelling Con law argument at all.

                  Ah, yes, the ol’ stare circulus jerkus.

                • Brien Jackson

                  “If someone said that there was no constitutional basis or theory holding that the Civil Rights Act preclearance requirements are unconstitutional, it would be perfectly appropriate to cite Shelby County. It’s not defending the case or agreeing with it. It’s pointing out binding authority supporting the point in question.”

                  But you’re citing Sebelius to justify Sebelius, which obviously doesn’t work. I mean, if you can’t come up with anything else to counter the point that the onstruction of legislative authority doesn’t make any sense then you’re just conceding that Roberts pulled it straight out of his ass.

              • Hogan

                I mean, it does exist.

                So the defense of Roberts’s reasoning boils down to “John Roberts is a Supreme Court justice and wrote the majority opinion.” Facts on the ground indeed.

            • cs

              Wait – you start by saying you are not distinguishing between anything, then you go on to say that A and B are “different types of coercion”. So obviously you are distingushing between A and B. Which is all that Snarki meant.

        • Scott Lemieux

          I think the response to this would be that it isn’t so much the degree of coercion as opposed to the type. Offering a state boatloads of money to participate in Medicaid is hugely coercive, but it’s largely OK. Telling a state that it will lose 0.1% of its highway funds if it doesn’t move its capital to a city with a more accessible airport (grrr, stupid Springfield) isn’t very coercive at all, but it’s probably not kosher.

          Right, but I don’t see how that’s relevant to this case. I agree that if there was ever a case were the federal spending power should be restricted, it would be a case where the connection between the nature spending and the conditions is too attenuated. But this is completely irrelevant to the Medicaid expansion, which is entirely direct (you have to do Medicaid to get Medicaid money.) to say that one way of doing this is unconstitutional and another equally coercive way of doing it is constitutional is absurd.

          • Denverite

            My point is that threatening to take money away is fundamentally different than offering it, even if it’s the exact same amount of money, and even if it’s hypothetically offered/threatened to encourage participation in the same program.

            Again, I’m not saying that either type is improper, just that the analysis changes depending on what you’re trying to coerce.

            • Scott Lemieux

              I still don’t understand why this distinction is constitutionally meaningful, and I’m also curious why every previous modification of Medicaid was constitutional although this form of coercion is allegedly unconstitutional.

              • Joe_JP

                Taking away something you have (sort of a vested right or privilege leading to reliance interests etc) can reasonably be seen as constitutionally different from not giving the thing in the first place, no?

                The difference as to the second thing is scope. Again, the merits argument make more sense — with the 90% payment etc., it isn’t much of a coercion etc. But, constitutionally, degree and “too much” does matter, and repeatedly the line drawing is somewhat vague and arbitrary.

                • Scott Lemieux

                  Taking away something you have (sort of a vested right or privilege leading to reliance interests etc) can reasonably be seen as constitutionally different from not giving the thing in the first place, no?

                  Except that states do not have any vested right to Medicaid spending. Congress can reduce or eliminate it anytime it wants.

              • Denverite

                I’m also curious why every previous modification of Medicaid was constitutional

                Because the per-ACA modifications to Medicaid, at least taken individually, were not nearly as radical (I mean this in a good sense) as changing Medicaid from a categorical eligibility program to an income-based one.

                • Brien Jackson

                  This isn’t a Constitutional argument, though. If Congress has the authority to modify the requirements and scope of a program and require states to comply with those changes, then the degree of those changes is a matter for the legislature to decide, not the courts.

                • Denverite

                  If Congress has the authority to modify the requirements and scope of a program and require states to comply with those changes, then the degree of those changes is a matter for the legislature to decide, not the courts.

                  Question begging. At some point, “modifying” a program is creating a new one. I’ll spare you the absurd hypotheticals about “modifying” the HSA to require states to provide high speed rail or whatnot. The question in this case is whether Medicaid expansion crossed that line. Roberts and the rest thought it did. (I actually think they were wrong on that, because Medicaid as it existed in 2009 was a lot closer to expanded Medicaid than the original 1965 Medicaid.)

                • Hogan

                  Did Roberts say exactly where the line was?

                • Brien Jackson

                  This still isn’t a Constitutional standard that’s at all workable. Even granting that there’s a huge difference in degree, the fact remains that we’ve conceded Congress has the right to modify the definition of what “Medicaid” is and what standards states have to comply with in order to receive funding for “Medicaid.” The courts have no Constitutional business making determinations about degrees of change, anymore than they do encroaching on Congress’ enumerated authority to enforce the 15th amendment.

                • Rob Patterson

                  So if Congress has changed to an income-based eligibility system incrementally, through a series of, say, 4 separate laws passed every other year (a somewhat far-fetched hypothetical, I admit), presumably this would be OK because each law would not violate Roberts’ “too much change all at once” principle. Another reason why this is not a great Constitutional principle.

                • Denverite

                  Fine, but why is this constitutionally significant?

                  Because the prior changes to Medicaid were the sorts of program modifications that the federal government does all the time. I think that Roberts’s opinion is pretty decent on this point.

                  It establishes that it can’t be that Congress used the “stick” rather than the “carrot.”

                  No, it establishes that Congress can use a stick in certain (most) circumstances. The question is whether this was one of the few that it can’t. Dole and Roberts’s opinion are both good on this point.

                • Scott Lemieux

                  Because the per-ACA modifications to Medicaid, at least taken individually, were not nearly as radical (I mean this in a good sense) as changing Medicaid from a categorical eligibility program to an income-based one.

                  Fine, but why is this constitutionally significant? It establishes that it can’t be that Congress used the “stick” rather than the “carrot.”

            • Schadenboner

              How about offering negative values of money?

            • Bruce B.

              Are there then any circumstances in which Congress is permitted to simply abolish a program? I can’t see how there are, in your rubric.

              • Denverite

                Huh? I must have said something I didn’t mean to, because Scott said this too.

                To be clear. Congress can abolish programs. They can — in a vacuum — exclude states from programs if states are unwilling to comply with the requirements of those programs. Under current law, they may or may not be able to expel states from a program if the state refuses to meet new program requirements depending on the details of the program and the new program requirements. Personally, I think that the last of those is defensible in the abstract. With respect to Medicaid expansion, I think it was a close call that SCOTUS got wrong, but understanding why SCOTUS got it wrong requires really getting in the weeds and looking at the evolution of the Medicaid program from 1965 to the present.

                • Brien Jackson

                  Wait, no it doesn’t. There’s no indication at all that John Roberts actually believes this bullshit beyond the point at which he can use it to screw over poor people and throw a bone to Republican state governments.

                • Denverite

                  I don’t think it implies that. You can articulate a perfectly cognizable anti-coercion theory that doesn’t involve vested rights. Indeed, I think that one actually works better.

                • Scott Lemieux

                  To be clear. Congress can abolish programs.

                  But how, given that the alleged constitutional importance of the “stick” as opposed to the “carrot” implies that states have a vested right to federal spending used to fund programs?

        • L2P

          I can’t really follow this argument. A loss of funding is just as coercive if funding is pulled as if it is simply never offered.

          In your example (for example), if the Feds offered to give Colorado $1 Billion to move it’s capital, it’s hard to argue that Colorado wouldn’t have a strong, dare we say “coercive,” incentive to move it’s capital? But that would never be considered unconstitutional for “coercing” a state.

          Even if you think that’s a thing, though, it’s routine for the Federal government to pull funding if a state doesn’t comply with some federal rule, and it’s never found, or even strongly argued, that this is “coercive.” Look at Title IX. If the Feds impose a reg requiring some specific mandatory sexual harassment policies to retain current funding, no one would find have found that “coercive.” (Before Sebelius, that is).

          It’s just hard to justify Sebelius’s medicaid ruling as anything other than an arbitrary distinction for a conservative goal. It will be routinely ignored in future federal spending cases because it’s unworkable.

          • Denverite

            I can’t really follow this argument. A loss of funding is just as coercive if funding is pulled as if it is simply never offered.

            That’s a conclusion, not an argument. Plenty of people think that losing funding is fundamentally different than being forced to choose to forego it.

            Even if you think that’s a thing, though, it’s routine for the Federal government to pull funding if a state doesn’t comply with some federal rule, and it’s never found, or even strongly argued, that this is “coercive.” Look at Title IX. If the Feds impose a reg requiring some specific mandatory sexual harassment policies to retain current funding, no one would find have found that “coercive.” (Before Sebelius, that is).

            Right, and I’ve said repeatedly that I think conditioning funding on compliance with program rules is acceptable in the vast, vast majority of cases (including, ultimately, Medicaid expansion, though that’s a close call).

            It’s just hard to justify Sebelius’s medicaid ruling as anything other than an arbitrary distinction for a conservative goal.

            It’s actually quite easy to justify it. When states signed on the Medicaid in the late 60s (except Arizona), they signed on to a program whereby people who were poor and couldn’t be expected to take care of themselves (the elderly, blind and disabled) were taken care of. States came to rely on the federal dollars (about 65% of program costs) to take care of these people, who happen to be quite expensive to take care of. In 2010, the federal government told the states that if they wanted to continue to receive federal assistance in taking care of these categorically needed people, they’d now have to take care of everyone who is poor or near poor in the state. That’s a huge change in the program. Many states would not want to do that, regardless of federal assistance. Roberts’s decision can be seen as his grasping at a doctrine to justify the fundamental unease he felt with the choice being put to the states.

            It will be routinely ignored in future federal spending cases because it’s unworkable.

            This, I agree with.

            • Hogan

              Roberts’s decision can be seen as his grasping at a doctrine to justify the fundamental unease he felt with the choice being put to the states.

              So the defense is that Roberts may be right that there’s a rule out there justifying what he did, even though he can’t say what exactly the rule is, or where you might find it in the Constitution or previous decisions, or where else it might apply.

              To be fair, previous Supreme Courts have dumped shit like this into the constitutional water supply and left it for future courts to fish out. I’d call that more a plea in mitigation than a defense.

              • Scott Lemieux

                So the defense is that Roberts may be right that there’s a rule out there justifying what he did, even though he can’t say what exactly the rule is, or where you might find it in the Constitution or previous decisions, or where else it might apply.

                This.

            • I can’t really follow this argument. A loss of funding is just as coercive if funding is pulled as if it is simply never offered.

              That’s a conclusion, not an argument. Plenty of people think that losing funding is fundamentally different than being forced to choose to forego it.

              Well, I gave a bunch of analogous situations which try to exhibit the equip-coercsiveness. But, there needs to be an argument that “losing funding” is “fundamentally different” (in what sense?) than being “forced to choose to forego [funding]”. (That last one is really a…strange…locution.)

              Wherein lies this fundamental difference? It’s not in the effect (i.e., how good each form of coercion is in achieving the outcome), or so we’ve stipulated. It’s not in the timing. It’s not in any material aspect, as far as I can tell.

              Again, we have:

              Impermissibly coercisve: Medicaid must be expanded to Medicaid+ at time t or Medicaid ends at time t.

              Permissibly coercive or perhaps non coercive. Fundamentally different anyway: Medicaid ends at time t and Medicaid+ (which is opt in) starts at time t.

              Now, obviously, if there were a right involved, that would be different. But what would the right be? It can only be to continuing Medicaid. But we know that’s not a right here.

              So the effects are the same, the microstructure is the same, the only difference is whether we call it an expansion or a new successor program.

              I don’t see that there’s a non disingenuous way to regard a nominal distinction like this as a fundamentally different sort of coercion. A threat is a threat even if I call it an “offer you can’t refuse”.

              • Denverite

                I’m not sure it is a fundamental distinction. It may just be a purely formalistic one. But those matter in the law a lot of the time. Maybe they shouldn’t. But they do.

                • Scott Lemieux

                  But, again, this is a rather feeble tautology. Formal distinctions matter because of some independent legal authority. The tax/penalty distinction matters because Congress has the explicit power to tax. But in this case the Court created a meaningless distinction, and you’re using the Court-created distinction to justify the distinction. That doesn’t work.

                • That’s a conclusion, not an argument. Plenty of people think that losing funding is fundamentally different than being forced to choose to forego it.

                  I’m not sure it is a fundamental distinction.

                  Ok, but you raised the idea that it was a fundamental distinction and generated several stick/carroty comments which gave the appearance of trying to articulate the distinction. If the distinction between the two “forms” of coercion is merely in the name then this obviously isn’t a serious power we’re trying to curtail. As Scott said above, where’s the protection? If Congress is allowed to coerce under one label, what’s the point of requiring them to label it that way? Well, obviously the point here is to damage a law that Roberts didn’t like. But that’s hardly meaningful.

                  It may just be a purely formalistic one. But those matter in the law a lot of the time. Maybe they shouldn’t. But they do.

                  Sure they matter in law a lot, but this is a hugely different sort of argument. If the argument is, “You must dot this ‘i’ in order for us to let you do this” that’s one thing. But that’s not been the argument thus far!

            • Hogan

              Plenty of people think that losing funding is fundamentally different than being forced to choose to forego it.

              Plenty of people think that being forced is fundamentally different from being tempted.

      • rea

        Despite what Tribe and Metz say, the pre-Sebelius case law recognizes no limited on use of the appropriations power to coerce except when it runs afoul of the first amendment

        • Joe_JP

          South Dakota v. Dole provided an opaque limit, but it was more than the 1A being violated.

      • Joe_JP

        some specific textual command

        why? Why can’t the structure of the Constitution also result in “such formalistic distinctions”? It isn’t “formalistic textual” distinctions, is it?

        You are better off leaving that out, and as you later do, challenge the argument on the merits as “invented” and “making no sense,” the latter better since courts “invent” in various ways over the years.

        Anyway, not quite feeling these recent USSC books. Mixture of too soon (Joan Biskupic has one coming out on Sotomayor — give her a few years!) and not really liking the style.

    • Hogan

      This still isn’t a liberal defense.

      • Denverite

        I wasn’t offering one. I was just saying that I find Scott’s argument — “you could repeal and reenact Medicaid with expansion, and therefore threatening to exclude states from Medicaid if they don’t expand can’t be coercive” — to be unconvincing.

  • joe from Lowell

    Well, Scott, the ACA Medicaid ruling is now established jurisprudence.

    The project of using it to accomplish liberal ends seems a worthy and necessary one.

    Supreme Court decisions and findings can have some unexpected consequences. Ask Antonin Scalia.

    • Murc

      The worthy project is to make it un-established. Wrecking shitty jurisprudence and making it no longer relevant is basically the cornerstone of liberal policymaking. The New Deal is entirely based around smashing previously controlling ideas about the Commerce Clause, and the Civil Rights Era involved smashing previously controlling ideas about equal protection.

      • Scott Lemieux

        This. The new spending power doctrine is terrible, and we shouldn’t think of ways of using it for progressive ends any more than we should have wanted Raich to come out the other way.

        • joe from Lowell

          But Raich didn’t come out the other way. Sebelius did.

          But we’re going to make it like it never happened. Sure we will.

      • joe from Lowell

        The worthy project is to make it un-established.

        Shall we click our heels three times?

        The New Deal…the Civil Rights Era…

        It sure would be nice to have the sort of clout that makes eras like that possible.

        • Murc

          Those eras were made possible by multiple generations of people who didn’t have the clout to make them possible right then dying on the hill of the status quo. The people who actually succeeded scrambled over a giant mount of metaphorical and in some cases literal bodies in order to plant that flag and declare victory.

          That’s how it works. You smash your head against the wall in the knowledge that you’re going to kill yourself doing it in the possibly vain hope that the guy behind you will smash his head on the wall and the wall breaks.

      • joe from Lowell

        I’m not saying you’re wrong about ultimately pulling off a full reversal, Murc.

        But that’s probably not a near-term accomplishment.

        • Murc

          The fact that there’s only so much time and effort to go around, coupled with the fact that opportunistically seizing on bad legal precedents for your own short-term ends helps to entrench them and makes you a lying hypocrite, means that my preference in this case is to concentrate on the long term.

          • joe from Lowell

            The scarcity of time and resources make the pursuit of a long term objective that isn’t all that likely a better use of time and resources?

            I can live with being “a lying hypocrite.” This isn’t about getting into Heaven.

            Although I don’t see why the citation of existing, controlling legal precedent makes one a lying hypocrite just because one doesn’t like the original decision.

            I can see the appeal of the low-stakes, no-lose-situation Charge of the Light Brigade approach. I’m just not convinced that making the most of a bad situation isn’t also a legitimate approach to the problem.

    • Joe_JP

      That’s a good sentiment but as with not using Commerce Clause limits to stop a federal abortion ban allegedly based on the CC, not seeing much coming out of it. Scott alludes to the coercion argument used for speech (and other rights) rights of individuals. There is some good case law there. Preventing coercion on states for liberal ends … well, how would that work here?

      • joe from Lowell

        I completely agree that the distinction Scott draws is a meaningful one, and that it’s entirely possible to recognize the one without reference to the other.

        But I don’t think it’s necessary for the courts to use them that way. Why shouldn’t a Democratic court cite Sebelius to back up non-coercion of individuals?

        • Murc

          Why shouldn’t a Democratic court cite Sebelius to back up non-coercion of individuals?

          Because it’s counter-productive?

          The way you get rid of bad legal precedent is by chipping away at it, not making it stronger and more robust. Every time precedent is cited it becomes more entrenched.

    • Hogan

      The project of using it to accomplish liberal ends seems a worthy and necessary one.

      That effort has a lot of moving parts that are well out of liberals’ control, especially the makeup of the court, the cases they choose to hear and the issues that get raised. For now I’d leave it to legal academics.

      Which is probably what you meant.

      • joe from Lowell

        Honestly, I hadn’t thought it through that far, but yeah. Division of labor makes sense.

  • Gwen

    “There is a very big difference between coercing individuals—who have explicit free speech rights—and coercing states, who do not.”

    A state though is an entity that represents a collective of individuals. I think for that reason then that states do have certain rights; the same logic is what justifies granting some rights to corporate personhood, after all.

    My thinking though, is that the “coercion” rule is dumb at least insofar as it applies to all the states equally. All the people (by and through their states) are being “coerced”, but the same totality of the people elected the Congress that is doing the coercing, so in the end, there really isn’t any coercion.

    I am still of mixed feelings about Shelby County (in that case you can make a non-ridiculous argument that the federal government was singling out Southern states for special treatment; not that this justifies the holding, but it is, at least, not pure bullshit, like the Sebelius coercion claim).

    • Joe_JP

      Don’t quite get this. If coercion of states is wrong, every state being coerced could be wrong. Let’s say the Congress equally requires each state to move their capital. Is that okay? The claim isn’t an equal protection one alone. It is that the states have certain sovereignty and can’t be illegitimately coerced, even if it is done in an evenhanded way. Shelby is dubious since the 15A was expected to be applied specifically against certain states — certain states discriminated more. It was an appropriate classification.

      … BTW, the bottom line of Denverite seems to be that the argument is possible but as applied it is still wrong and in the future it won’t be applied reasonably. The debate is largely academic as to a possible argument on how coercive strings (as compared to just doing away with something w/o such a quid pro quo) might be a problem. I get some think even given Roberts a bit of credit is wrong, but it doesn’t amount to much really imho.

      • Denverite

        the bottom line of Denverite seems to be that the argument is possible but as applied it is still wrong and in the future it won’t be applied reasonably

        Actually, my original point was just that I don’t find Scott’s argument re: repealing Medicaid and enacting a new Medicaid-Plus-Expansion very convincing.

        As to your point, I’d phrase it more like this: In theory, an anti-coercion doctrine is interesting and perhaps even desirable. Given the massive importance of federal Medicaid dollars to every state’s budget, I am sympathetic with its application in the case of Medicaid expansion — states really did have no choice but to expand given that they’d lose their biggest revenue source by far. However, I think that Medicaid had been expanded so much in the past few decades that there really weren’t that many people who didn’t fall into some eligibility category, and as such, I don’t think expansion was as radical as it might seem on its face. Therefore, I view it more as a program modification and not a new program.

  • Denverite

    Man, I’m going to be sore in the morning.

    • You’ve been heroic in making the contrary pitch, fwiw.

      I think this go around we’ve honed in on what might matter rather better.

      Of course, I now think the contrary pitch is even weaker than I had thought :)

      • Scott Lemieux

        I might get a post out of it, although that might require an increase in Hogan’s Ben-Gay subsidy. Hopefully he will remember to repeal the initial one first…

        • Denverite

          This sounds ominous.

        • Hogan

          At least the Hogan Ben-Gay plan offers actual Ben-Gay, and not some shit like vouchers.

          • But what about the individual Ben-Gay mandate?

            • Hogan

              Look, pooling the bruises and muscle aches is the only politically viable way to make this work. I know it keeps the evil greedheads who make Ben-Gay in business, but we can’t let the perfect be the enemy of the good.

    • Hogan

      Aww. Sorry. Have some Ben-Gay.

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