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Elizabeth B. Wydra Headshot

Who Really Represents the States in the Health Care Cases?

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When the Supreme Court hears arguments in the challenges to the Affordable Care Act this week, who will be speaking for the states? This isn't a trick question: obviously, Paul Clement, the former Solicitor General for George W. Bush, will be standing before the Justices on behalf of the 26 states challenging the constitutionality of the Affordable Care Act. But while Clement has received plenty of attention for lending his considerable talents to the ACA challenge and other conservative legal causes--glowing profiles, geek-chic photo spreads--scant attention has been paid to the fact that Clement's clients do not actually represent the views of the states as a whole on whether the health care reform Act is constitutional. Despite the tea-party-friendly "states' rights" rhetoric of the attacks on the ACA, many states and state legislators have been saying "don't tread on me" to the Act's challengers. Thirteen states and more than 500 legislators from each of the 50 states have filed briefs with the Supreme Court strongly disagreeing with the challenger states' legal position and their flawed, historically-inaccurate view of federalism.

For example, pro-reform states filed a powerful brief in the Supreme Court explaining why it is difficult for individual states to reform the healthcare industry on their own. Speaking from experience, Massachusetts, in a separate brief, backed up Congress's use of an individual mandate as part of its regulation of the healthcare industry, which comprises nearly 20 percent of our nation's economy. As much as presidential-hopeful Mitt Romney might like to forget it, Massachusetts's healthcare plan--individual mandate and all--was a model for the Affordable Care Act. With on-the-ground knowledge, the state has supported Congress's decision to impose the individual mandate. As the pro-reform state legislators have told the Supreme Court, federal health care reform "was imperative for Americans, as well as for their State and local governments," and they couldn't have done it alone.

Pro-reform states have also blasted the challenger states' notion that the ACA is some novel intrusion on state regulation of health care by noting that the states and the federal government have been working together to implement healthcare policy for at least the last half-century. The federal government has been involved in the healthcare industry through the Veterans Administration and Medicare, among other programs, and by giving money to the states to help them provide healthcare to low-income Americans through Medicaid.

Of course, the challenger states argue that the Act's expansion of Medicaid to cover approximately 16 million more low-income Americans is unconstitutional. Less attention has been paid to this aspect of the healthcare reform challenge than to the claims against the individual mandate, but it could be the "sleeper issue" of the case. The challenger states have argued that requiring states to do certain things as a condition of federal funding--in this case, using federal Medicaid money to cover millions more needy Americans--unconstitutionally "coerces" states into doing the federal government's bidding. While this argument went nowhere in the lower courts, now that the Supreme Court has decided to hear the issue, Americans should take it seriously.

To be sure, the basic flaws in the challenger states' "coercion" argument make it difficult to take too seriously. Medicaid is and always has been a wholly voluntary partnership between the federal government and the states. It's difficult to say that something is coercive when it is entirely voluntary.

It's even harder to say that the Act's expansion of Medicaid burdens the states when the federal government will foot the bill for 100 percent of the expansion, eventually tapering off to 90 percent support after 2020. Nonetheless, the challenger states are arguing that this deal is too good--an offer they can't refuse--and they have no choice but to accept federal Medicaid money and whatever strings come attached.

A large number of state leaders are calling this nonsense. Turning down the Act's Medicaid expansion and federal funds might not be a smart choice--although Texas Governor Rick Perry has considered it--but it is certainly a possible choice. As the pro-reform state legislators told the Court in their brief, states "must now choose whether to comply with the new Medicaid requirements, or exercise their right to opt out of the program altogether." The challenger states should not expect the courts to help them hide from a politically painful decision.

When the Justices hear the six hours of argument on the constitutionality of healthcare reform this week, there will no doubt be much talk about "states' rights." But it is important to remember that the lawyer for the 26 challenger states doesn't truly represent "the states" v. the federal government. Many other state leaders--including some within the challenger states--think that healthcare reform is not only constitutional, but also a great step forward for their states and their citizens. And many state leaders also believe that when it comes to states' rights and healthcare reform, the states challenging the Affordable Care Act are not right at all.