The legal challenge to the Affordable Care Act doesn’t get discussed in the same breath as traditional civil rights cases, but today’s argument shows why it should.
The entire evolution of civil rights law in this country is as much an exploration of the relationship between federal and state power as it is between the individual and the state. And day three of oral arguments bore that out precisely. Today’s arguments really weren’t about the Affordable Care Act per se as much as the Affordable Care Act provided a springboard for the conservative wing to flirt with enshrining a dangerous new understanding of federalism.
And they flirted hard.
The Court took up two issues: whether or not the Medicaid expansion violated state’s 10th Amendment rights because it is “too good to pass up” and therefore unconstitutionally coercive, and whether the entire health care law would fail if the mandate fails. It was clear this Court wanted to take a good, hard look at the Medicaid model despite the fact that this was principally a legal challenge to the individual mandate.
By way of background, when the Court first announced review of the health care law the fact that it agreed to hear the Medicaid challenge came as a shock to many court watchers, including me. All of the lower courts had rejected it because, well, the idea that it is unconstitutional for the federal government to give states enormous sums of money with preconditions on how some of that money is to be spent was, up to today, not only ludicrous but such a radical understanding of federalism that it just wasn’t taken seriously.
Yet for nearly an hour Justice Antonin Scalia lead the charge into this abyss. And based on the questioning, Justices Roberts and Kennedy were only to happy to join.
The challengers claim that the health care law’s Medicaid expansion is coercive because any state that refuses to adhere to it will lose all of their Medicaid funding. That is, even though its federal money, because state’s run the particular program they should call the shots on how that money gets spent.
Does this sound familiar? It should. It’s the same legal theory propelling the Catholic Bishops in their crusade against providing reproductive health care to women and Texas in its drive to defund Planned Parenthood. Some might argue that the “religious freedom” challenge is Plan B should the “10th Amendment/states rights” argument go awry.
But back to the case at hand.The challengers continue that states will still be coerced even though the federal government will largely cover nearly the entire cost of the Medicaid expansion. The program is so entrenched in state social services that they can’t turn down any dollars, let alone significant ones such as major eligibility expansion. Essentially, the federal government can sweeten the deal, it just can’t sweeten the deal too much.
The very fact that the states challenging health care reform have in fact refused federal dollars to create the exchanges would seem to be a pragmatic and important rebuttal to the challenge here. Instead, the Court seriously entertained, and beyond its aloted time event, the first full exploration in the history of the theory that the conditions Congress attaches to money it gives away to the states can be so onerous they deprive states of their sovereign independence.
If the court determines that the new conditions imposed by the Affordable Care Act are in fact coercive to the states and therefore in violation of the 10th Amendment, it will call into question all federal-state cooperative programs run by the states but funded primarily with federal dollars. Special education programs, community grants, nearly every aspect of our social safety net falls under the category of this kind of state-federal partnership.
Maybe the only thing stopping the Court from gutting the social safety net in its entirety and returning us entirely back to the early 1800′s jurisprudentially is the fear of the flood of challenges to congressional action such a holding would spawn. Maybe.
The other big issue before the Court was whether or not the entire law went down with the mandate. You’d think this would be the main event but the justices really didn’t seem that interested in it. Justice Scalia obviously believes the entire law should go, and Justice Kennedy may follow. He offered the most contorted logic of the day arguing that striking the entire law would be an exercise of judicial restraint as opposed to only a portion which would function as a re-write of the law.
I’ll be honest. Today the conservative wing of the Court showed sympathy and in some cases outright interest and embrace in positions no credible legal scholar really ever took seriously. Even the horrendous Citizens United can be best understood by putting it in line with a history of weird First Amendment case law so that while it’s exceedingly distasteful there’s at least a nugget of recognizable legal thought underpinning it.
That is not so with the arguments today.
Based on precedent and the law as it stands today there is no real question the Affordable Care Act should be upheld. So the real question then is whether these past three days were a bit of theater designed to satisfy the bloodlust of the hard right, or, has the Roberts Court truly and fully embraced a pre-Civil War view of federalism? I guess we wait and see.
Photo from vectorportal via flickr.