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Today in the Ad Hoc Legal War Against the ACA, Mr. Plow Conservatism Edition

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Florida Gov. Rick Scott Attends Hurricane Conference

“We’ll take your LIP money, but we won’t plow your driveway — that would be tyranny.”

As a principled defender of States’s Rights (sic), Gov. Lex Luthor is demanding the federal money he does want in perpetuity:

Florida Gov. Rick Scott announced Thursday that his administration will file a lawsuit against the federal government for threatening to withhold more than $1 billion in funding for hospitals if the state fails to expand Medicaid.

“It is appalling that President Obama would cut off federal health care dollars to Florida in an effort to force our state further into Obamacare,” Scott said, citing a 2012 Supreme Court ruling that said the federal government couldn’t put a “gun to the head” of states to force them to expand Medicaid under the health care law.

The Obama administration quickly accused Scott of misconstruing that court decision because the state is not being forced to do anything. And White House spokesman Josh Earnest blasted the governor for putting politics above people.

[…]

CMS countered Thursday afternoon that the state is not being forced to do anything. The LIP program is optional and “has long been scheduled to expire June 30,” agency spokesman Aaron Albright said in a statement. Nor is CMS threatening to withhold the billions in federal dollars that help to fund Medicaid in Florida, Albright added.

“Florida, like all states, is free to implement Medicaid expansion or not,” he wrote. “Florida is requesting an additional optional extension, which raises a different question: whether it promotes the objectives of the Medicaid statute to use demonstration authority when the state has statutory options that would better serve the low-income population.”

Florida’s Republican Senate president, Andy Gardiner, sides with CMS. “The federal government has no obligation to provide LIP funding, or to work within our timeframe,” Gardiner said in a written statement.

This is a novel argument: not only does Florida have a vested right to existing Medicaid funding even if it doesn’t accept the Medicaid expansion, it has a vested right to non-Medicaid federal spending even if it doesn’t accept the Medicaid expansion and even if that funding is set to expire. Even for people with a high enough tolerance for incoherence and illogic to defend the Sebelius Medicaid holding, this should be a neoconfederacy too far.

And yet, while I think Scott’s argument goes beyond even Sebelius, it does have enough in common with it to illustrate a fundamental problem with its reasoning. Roberts’s assertion that there’s some arbitrary limit on how much the content of a program can be changed beyond which categorical funding conditions become unconstitutionally “coercive” seems to imply that states have some sort of entitlement to existing Medicaid funds. The rather obvious problem with the argument is that states don’t have any entitlement to existent federal funds. And yet, without the assumption the argument collapses into a heap — if states aren’t entitled to their Medicaid funding, then Congress can change the content of Medicaid however it wants and still make taking the funds an all-or-nothing proposition. By holding otherwise, the Court created a rabbit hole, which would be more defensible if the consequences of this adventure in doctrinal wonderland* didn’t also produce catastrophic results.

*Thanks to Justice Stevens for the phrase.

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