No, Really, Blame John Roberts on Medicaid

The Prospect's Paul Waldman has a terrific piece noting the terrible effects of states refusing the Medicaid expansion contained in the Affordable Care Act. Slate's Matt Yglesias notes who should get the blame for this: John Roberts and the other conservative Republican justices who—in an unprecedented decision—ruled that making existing Medicaid money from the federal government contingent on accepting the expansion was unconstitutional.

Kevin Drum of Mother Jones, however, argues that we shouldn't blame John Roberts because he was right:

I think this is unfair. In fact, there were only two justices who upheld the Medicaid expansion (Ginsburg and Sotomayor). All the rest, including the liberals Breyer and Kagan, struck it down. So it wasn't even a close call. The vote against the Medicaid provision was 7-2.

And as much as I dislike the result, I can't find a lot of fault with this. The basic holding was simple: given our federalist structure, states can't be forced to help fund new federal programs like Obamacare's Medicaid expansion. They have to be given a genuine choice. If rejecting the program merely means losing the benefits even though your state's income tax dollars are helping to fund it, that's a tough choice, but still a real one. Conversely, if you're threatened with losing not just the funds for the expansion, but your entire existing Medicaid program, it's not a real choice at all. Nobody could even dream of doing that. In practical terms, you're being forced to accept the expansion and you're being forced to pay for it with state dollars.

On the first point, the 7-2 vote is very misleading, since the votes of Breyer and Kagan were almost certainly acting strategically. They cast symbolic votes for the most liberal position that had any chance of receiving five votes, while also joining the opinion of a justice who by several reports had changed his mind at the last minute in voting to uphold the most important progressive policy achievement in several decades. I can't prove it, but I think the chances that Stephen Breyer, who has the most expansive vision of federal power of any Supreme Court justice of the last half century, would have cast the deciding vote to strike down the ACA's mechanism for funding the Medicaid expansion are extremely remote.

Leaving aside whether Breyer and Kagan's votes were sincere expressions of their constitutional views, does the argument make sense on the merits?

It really doesn't.

If the ability to deny some poor people access to medical care is central to state sovereignty, I'm not sure how giving states the opportunity to deny medical care to all poor people doesn't represent a "real choice." States acting out of libertarian principle can still refuse the money, and I'm not sure what central principle of sovereign dignity rests on it being possible to refuse to cover people making 150 percent of the federal poverty line rather than 60 percent. As Justice Ginsburg pointed out in her dissent, the number of people states were expected to cover under Medicaid has increased (along with the available funds) on numerous occasions. The new expansion would involve the federal government picking up more of the tab than has typically been the case. As Ginsburg also observes, states would also retain substantial autonomy under the Medicaid expansion: "[s]tates, as first-line administrators, will continue to guide the distribution of substantial resources among their needy populations."

Drum may be right that as a practical matter "[n]obody could even dream" of ending their participation in Medicaid altogether rather than just refusing the expansion. But so what? It's also clear that no state would ever lower the drinking age when it would mean turning down substantial federal highway money. The use of the federal spending power has therefore created a uniform national drinking age—but in longstanding precedent no member of the current Court has questioned Congress's authority to do so.

How the Medicaid expansion is meaningfully different is far from clear; I don't think there's any principled way of determining when "offering states a good deal" becomes unconstitutional "coercion." I can imagine an argument if the money being potentially withheld was something entirely unrelated to the objectives of the program—if, say, the ongoing presence of military bases or educational grants was made contingent on the Medicaid expansion. But I don't see how making Medicaid funding contingent on meeting increased coverage requirements can be unconstitutionally coercive.

There's an even bigger problem with Drum's argument, which can be summed up in two words: Shelby County. What made the Supreme Court decision eviscerating the Voting Rights Act so outrageous was that one hand Congress was explicitly authorized by the 15th Amendment to address racial discrimination in voting, and on the other hand the Voting Rights Act did not violate any other explicit provision of the Constitution. Well, the argument that the Medicaid expansion violates the Constitution had the same problem. While I think that the argument that the ACA's individual mandate exceeded Congress's power is extremely weak, it is at least based on a real constitutional limitation: it is clearly implicit in Article I and made explicit by the 10th Amendment that any Congress must act within its enumerated powers, so it did have to be shown that the mandate was a regulation of interstate commerce, necessary and proper to Congress' commerce power, or a valid exercise of its taxing powers. With respect to the Medicaid expansion, conversely, Congress is unambiguously given the authority to tax and spend to "provide for the . . . general Welfare of the United States," and nobody argues that the Medicaid expansion violates any explicit provision of the Constitution.

As with Shelby County, I think this should settle the question. If we're going to strike down major legislation based not on a fundamental individual liberty interest protected by the Constitution, but in order to uphold some free-floating concept of "state sovereignty" not tethered to any explicit provision, there had better be a very good argument that some clearly positive consequences will flow from the decision or that the "sovereignty" being protected is of major importance to the functioning of state governments. Here, the argument against the Medicaid expansion fails massively. As Waldman shows in detail, the policy consequences of the Supreme Court's intervention were not only bad but perverse: the states where the poor have the least access to healthcare are also generally the states least likely to take the money. (The way Congress structured the program, in other words, has been very much retroactively justified.) Nor am I able to see why being required to accept the federal government's current requirements to accept Medicaid funding represents some kind of existential threat to the Sovereign Dignity of the states but being offered deals that create a de facto national drinking age and speed limit don't. Having read two Supreme Court opinions trying to make the case several times I remain entirely unclear why the authority to deny medical care to large numbers of poor people, in particular, is an essential component of state sovereignty.

As we were reminded vividly this June, the Supreme Court prioritizing some quasi-constitutional "state sovereignty" interest over the explicit powers granted to Congress has a long and dismal history that undercuts the crucial rights and interests of society's most vulnerable people in exchange for no discernible benefits. The Supreme Court's decision to strike down the ACA's mechanism for expanding Medicaid is another case in point.

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