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The Hidden Villain Behind TrumpCare

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Is John Roberts:

The direct consequences of the decision were bad enough. Nineteen states still haven’t taken the Medicaid expansion, with the result that millions of poor, disabled, and/or elderly people are being denied insurance. But the indirect effects have also been very bad. The utter decimation of Medicaid is at the core of TrumpCare (it is even worse in the Senate version than in the House one). This would have been a lot harder to pull off if those 19 holdouts—all of them Republican-controlled—had taken the expansion money.

A new study shows that when a state took the Medicaid expansion, its residents became more likely to support the ACA. It would be more difficult to wreck Medicaid if more Republican voters had benefitted from the expansion. As the policy analyst Sean McElwee acidly put it, “The Republican Party’s strategic choice to brutalize their own voters by denying them health care basically worked.”

It would be one thing if these awful consequences came from a decision with a compelling legal basis. But the Medicaid expansion holding in Sebelius was, at best, a massive stretch. Nothing in the text of the Constitution places explicit limits on the conditions the federal government can place on money it offers to the states.

When the Supreme Court held in 1987 that it was constitutional for the federal government to use the threatened withholding of federal highway funds to create a de facto national drinking age of 21, it argued that the Constitution places implicit limits on the ability of the federal government to coerce the states to achieve national objectives. But the implication of the decision was that, if there were a case in which conditions on federal spending power were unconstitutional, it would involve an indirect objective only obliquely related to the central purpose of the spending. Nothing in the Court’s decision suggested to Congress that a straightforward condition—such as, “if you want Medicaid money you have to accept the conditions of the Medicaid program”—would be unconstitutional. In fact, the conditions placed on states that take Medicaid had been changed many times before the ACA.

Far from having the compelling legal basis that would be needed to justify its sweeping implications, the Medicaid expansion holding in Sebelius is a ludicrously incoherent mess.

This matters a great deal going forward. Let’s say President Kirsten Gillibrand takes over in 2021 with Democratic majorities in both houses of Congress. One of their top priorities will be to fix the damage inflicted by the Medicaid cuts, which in the Senate’s version of TrumpCare will phase in fairly slowly. How can Congress be sure its attempts to restore funding won’t be found to be unconstitutionally “coercive” changes to Medicaid spending? The answer is, it can’t be sure. Sebelius didn’t create any kind of workable standard, providing no meaningful guidance to Congress about how far is too far. And even worse, the more people a restored Medicaid insures, through new conditions on the disbursement of Medicaid funds, the more likely it is to be struck down. It’s a truly perverse situation.

One answer is to bypass the spending power issues by simply making a greatly expanded Medicaid a purely federal program like Medicare. Only this creates its own problems. While Roberts voted to uphold the mandate in the ACA as a valid use of the taxing power, he found that it exceeded Congress’s powers under the Commerce and Necessary and Proper clauses. Especially if Trump and McConnell are able to confirm one or two more justices, there’s a real chance that expanded public insurance programs might be struck down based on whatever quarter-baked constitutional argument cooked up on a conservative legal blog sounds best to the Republican Supreme Court nominees.

The Medicaid holding Sebelius was a 1)completely inherent mess that 2)made repeal of the ACA more likely and 3)gives Congress no meaningful guidance whatsover about how to repair the damage. Heckuva job!

There is a defense of this dog’s breakfast along the lines of “there will always be tough cases.” There will always be marginal cases where a police office can’t be 100% she if her search is “reasonable” even of the Court does a good job making it as clear as possible. But this really won’t fly here. First of all, this isn’t just about tough cases; Congress has no idea at what line a Medicaid expansion covers too many people to avoid being unconstitutionally “coercive.” And, second, that defense makes sense when the Court is enforcing an explicit constitutional provision. That’s not the case here. If you can’t create a workable standard to enforce a dubious judicially-created inference from the structure of Constitution, then just forget the whole thing. And that goes double if your holding is literally killing people.

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