In the lead-up to next week's historic, six-hour Supreme Court argument on the constitutionality of the Patient Protection and Affordable Care Act (ACA), the press and commentariat remain focused almost exclusively on the challenge to the ACA's minimum coverage provision (which requires many Americans to obtain health care insurance or pay a tax penalty) and the argument that this provision exceeds Congress' power under the Constitution's Commerce Clause. Lost in the avalanche of coverage of that aspect of the case is the fact that the Court will also be hearing a sweeping attack on the Act's expansion of the Medicaid program to provide health care for 16 million more low-income Americans. The challengers claim that the Medicaid expansion is "coercive" to the states and thus an unconstitutional exercise of Congress's Spending Clause authority. This claim is wrong, but if it were to succeed, it would be a constitutional earthquake that would throw into question Medicaid and other federal statutes that create federal/state partnerships to solve nationwide problems such as health care, child welfare and discrimination.
Progressives should be particularly attuned to the attacks on Medicaid and Congress' Spending Clause power. Unlike the minimum coverage provision -- a concept designed by the conservative Heritage Foundation that has generated considerable unease among some progressives -- Medicaid is a quintessential social safety net program. Its expansion is perhaps the single most significant progressive victory in the ACA. Thus, for progressives -- including more than 500 state legislators from all 50 states who are defending the Medicaid expansion -- the Supreme Court's decision to review the claim by 26 states that the ACA unconstitutionally coerced states by conditioning Medicaid funds on the states' agreement to expand coverage to more of their residents was a particularly unsettling surprise. In contrast to the claims against the ACA's minimum coverage provision, there was no split in lower court rulings on the constitutionality of the Medicaid expansion: not a single lower court judge ruled for the states on this claim. Indeed, no court has ever ruled that any Spending Clause statute is unduly coercive, a recognition that it is difficult, if not impossible, to differentiate between an appropriate financial inducement and unconstitutional coercion.
So why did the Court decide to review this claim? Could this particular claim of coercion succeed where all others have failed? The text and history of the Constitution and the Court's precedents say otherwise. The Spending Clause in Article I, Section 8 grants Congress the power "to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States." In the Federalist Papers, Alexander Hamilton described this broad grant of authority to tax and spend as "an indispensible ingredient in every Constitution." The Supreme Court, too, has generally interpreted the Spending Clause according to its broad terms, ruling in the leading case in this area, South Dakota v. Dole (1987), that "Congress may attach conditions on the receipt of federal funds, and has repeatedly employed the power 'to further broad policy objectives by conditioning the receipt of federal moneys upon compliance with federal statutory and administrative directives.'"
Paul Clement, the high-profile conservative lawyer representing the Medicaid challengers, argues that the ACA's expansion of Medicaid is a bridge too far. Because the federal government could withhold all Medicaid payments to states that fail to comply with the Act's expanded coverage and other requirements -- which is no small thing, given that the federal government will fund 100% of the Medicaid expansion initially, eventually tapering down to 90% -- Clement argues "[t]here is no plausible argument that a State could afford to turn down such a massive federal inducement." Essentially, the argument is that the federal government's Medicaid spending is too generous, that the states and their residents have become too dependent on this valuable program, and that it is therefore an offer the states cannot afford to refuse. This argument should be a loser. While the Supreme Court has suggested that there might be a "point at which pressure turns into compulsion," it has never found any conditioned spending to be inappropriate coercion or compulsion. In addition, the Court has recognized that "every rebate from a tax when conditioned upon conduct is in some measure a temptation" and "to hold that motive or temptation is equivalent to coercion is to plunge the law in endless difficulties."
Clement is asking the Court to take the plunge, which is what makes this aspect of the ACA case so scary. Clement argues that a ruling for the challenger states on this point would invalidate "the entire Affordable Care Act," an enormously significant outcome, even if this were the only fallout. But that limited result seems unlikely. To some degree or another, the objective of Congress in employing the Spending Clause is always to make an offer to states that is so generous -- or politically popular -- that they cannot afford to turn it down: the federal government always wants to convince states to participate. As a result, a ruling for Clement and his clients would throw into doubt prior expansions of Medicaid and federal/state partnerships across a wide range of areas including education (No Child Left Behind), child welfare (Adoption and Safe Families Act), disabilities (Individuals with Disabilities in Education Act), and civil rights (Title VI of the Civil Rights Act of 1965 and Title IX of the Education Amendments of 1972), a prospect that has some conservatives cheering.
Even if the Supreme Court ultimately rejects the states' coercion argument in this case, as it should, its ruling could make important new law on the ability of the federal government to use the Spending Clause to enlist states in federal-led efforts. As the Court turns to the ACA next week, most eyes will focus on Tuesday's oral argument on the minimum coverage provision, but we should all be watching just as closely during Wednesday's argument on Medicaid. While this aspect of the case could easily fizzle out, it could also end up being the part of the challenge to health care reform that matters most.
Doug Kendall is President of Constitutional Accountability Center (CAC) and a co-author of the two briefs CAC filed in the ACA litigation on behalf of a coalition of more than 500 elected state legislators from all 50 states, one defending the constitutionality of the minimum coverage provision, the other defending the constitutionality of the expansion of Medicaid.
This post is cross-posted on Text & History Blog
Follow Doug Kendall on Twitter: www.twitter.com/myconstitution
And, I think many of us do know the answer. Having been a part of the "healthcare biz" for many years, I can truly say that it most certainly IS a biz. And, like all capitalistic endeavors, the bottom line is always PROFITS. Always. This is what is driving healthcare costs. GREED.
And yet, here we are. I take it as a given that ruling the Medicaid element unconstitutional does upset a lot of precedents, and flies against the specifics and tenor of this Court's rulings. And I thought that it was a bedrock conservative core belief that whoever pays the piper calls the tune. You, a state, want Medicaid money, this is what you need to do.
FDR, after losing a few cases, wished to expand the Court, so he could add more presumably sympathetic justices. He was thwarted, and his "stacking" the court was making the appointments one gets to make for having 12 years in office. Besides, it's well-known radicals Eisenhower, Nixon, and Reagan who appointed the justices Federalist Society types revile most.
Jon Gruber, one of the architects of the Romney plan in Massachusetts, who also played a role in Affordable Care Act(Obama plan), actually said on C-SPAN that a major reason Romney promoted his plan for Massachusetts was PRECISELY because Romney knew the federal govt would pay for his plan, and that he would not have to raise taxes on Massachusett's taxpayers.
The Affordable Care Act stipulates that the federal government will pick up the tab for the increased numbers of people to be incorporated into Medicaid.
Since Romney, and presumably the GOP itself, made no objections when the governor obligated the federal taxpayer to assume the cost for his Romneycare in Massachusetts, I have no patience for GOPERS suddenly evincing this contrived outrage over Obama's Affordable Care Act incorporating more persons into Medicaid, since the federal government is paying the costs.
If conservatives really believed what they say, then they wouldn't believe the supreme court has the power to rule the ACA unconstitutional in the first place.
Liberals, especially Progressives, would love to see state governments turned into nothing more than administrative bodies that are an extension of the federal system, much like how prefectures are in Japan.
This is not, however, how the Constitution was designed. Even the federalist papers favor a system of independent states working together in a union of common interest, but still retaining the ability to govern themselves. Since the Radical Republicans and Reconstruction, the effort to strip away any power by the Southern states has been a non-stop drive by those who still feel that the South has to pay for its crimes.
Lol. You are completely anti-deomocracy.
"democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths" - James Madison
The real point in Dole was that the total amount of highway funding being withheld from the states (if they didn't raise their drinking age from 18 to 21) was a pittance compared to the overall amount of funding, so states couldn't reasonably say they were being compelled. However, a much larger chunk of cash (relative to a state's budget) is on the line for the medicaid reforms under Obamacare. Mr. Kendall fails to note that with medicaid, the state is compelled to spend matching amounts to get the federal dollars, putting the states in a tough position WRT their own budgets; that alone could be enough for the court to strike it down.
I think that the author needs to go study the claims more closely, since his argument basically begs the whole question.
If a state wants a health care program, it is perfectly capable of collecting the tax revenues it needs to operate such a program and it can do so legally under state and federal law. The federal government, however, is subject to working within the constraints of the enumerated powers of the constitution (only). That's just the way the US government is set up.
Your mindset seems to be that anything that is well-intentioned must be okay; that's merely a recipe for chaos as each side inevitably believes its ideas are well-intentioned (that's why we have a written constitution of enumerated powers).
Yet there is no uproar about activist judges from conservatives, what a surprise.