The Ad Hoc Legal Challenge to the ACA You Might Have Missed

The legal attack on the ACA that’s gotten less attention but would blow up the system if the Supreme Court bought the argument. My guess is that after the two wingnuts on the panel that initially heard the case vote to destroy the American health insurance system based on a willful misreading of the statute, the D.C. Circuit en banc will read the statute properly and the Supreme Court won’t take the case. But I’m not as confident, especially of the latter, as I’d like to be. We can also see here why blowing up the filibuster for circuit court appointments was so important.

One thing to add to the initial piece is that the nihilists making this silly argument, realizing that a hyperliteralism that ignores both other specific provisions of the statute as well as its overall structure and purpose might not be be enough, have developed a darkly comic theory asserting that Congress really intended to deny subsidies to people getting insurance from the federal exchanges. According to the theory, Congress wanted it this way because they assumed that no state could possibly want significant numbers of its citizens denied practical access to health insurance, and hence would have no choice to set up their own exchanges if the federal ones didn’t work. In other words, the Democrats who voted for the legislation would have had to be so delusional as to see Republicans at the state level as collaborators interested in working to achieve the goals of the ACA. Now, there are some individual Democrats who are a little slow on the uptake about what the Republican Party has become, and some dupes who erroneously consider themselves tough-minded leftists who at least pretend to think that Republicans secretly support the ACA model. But, as both the Medicaid funding mechanism and the provisions that allowed the federal government to establish exchanges (crucial detail!) “on behalf” of the states makes clear, the architects of the ACA were perfectly well aware of what the Republican Party circa 2010 is, and contrary to this lunatic theory knew very well that Republican statehouses would gleefully shoot the hostages generated by non-subsidized federal exchanges.

I’m also reminded of a point made by Ginsburg in her Sebelius opinion. (Because some of the neoconfederate barbarians were kept from the gates, it gets less attention than her instant classic Shelby County dissent, but it’s equally good.) The Supreme Court was able to arbitrarily deny millions of people Medicaid because Congress left too much autonomy to the states:

Finally, any fair appraisal of Medicaid would require acknowledgment of the considerable autonomy States enjoy under the Act. Far from “conscript[ing] state agencies into the national bureaucratic army,” Medicaid “is designed to advance cooperative federalism.” Subject to its basic requirements, the Medicaid Act empowers States to “select dramatically different levels of funding and coverage,alter and experiment with different financing and delivery modes, and opt to cover (or not to cover) a range of particular procedures and therapies. States have leveraged this policy discretion to generate a myriad of dramatically different Medicaid programs over the past several decades.” The ACA does not jettison this approach. States, as first-line administrators, will continue to guide the distribution of substantial resources among their needy populations.

The alternative to conditional federal spending, it bears emphasis, is not state autonomy but state marginalization. In 1965, Congress elected to nationalize health coverage for seniors through Medicare. It could similarly have established Medicaid as an exclusively federal program. Instead, Congress gave the States the opportunity to partner in the program’s administration and development.

There’s a lesson here should more and better Democrats get a national governing majority. Trying to accommodate neoconfederates and their sympathizers can’t work, because as always conservative interest in the Equal Sovereign Dignitude of the States begins and ends with cases in which “federalism” can advance substantive conservative policy goals. Collaborating with states rather than just federalizing programs doesn’t accomplish anything but give Republicans another lever to sabotage.