Health Care Arguments Day Three: The Rise Of The States

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.

Related Stories:

Health Care Arguments Day Two: Mandate Under Fire

Health Care Arguments Day One: Common Ground

Photo from vectorportal via flickr.


Carlos B.
Carlos Bagram5 years ago

@Charles P. and other like minded individuals.
If the Government wants to mandate something, they should mandate those handouts instead of mandating those who contribute to the system to put more in. What am I talking about? In credible to everyone who cannot afford healthcare demands healthcare as a right and it should be paid for, so how about we make it mandatory for your Tax Refund go straight to pay for your healthcare? If you complain about how you need that money to pay for bills because you only make so much, how about your medical bill? Is that one of those bills you need the money for or is it for some cool new purchase? Hell, many out there are all excited for that tax refund like it was free money. So then they should not cry or complain if in their opinion the Government can MANDATE SOMETHING right? I vote for Bye-Bye tax refund, hello ‘Free’ Healthcare! What you didn’t like that?

Donald T.
Donald T5 years ago

for those comedians, reality is a terrible place when they can live in fantasyland and invent the facts they want. bottom line, lies are created for comfort, kind of like sucking a thumb, still, and that can be phallic.

Jeffrey W.
Jeffrey W5 years ago

"I find it odd that Jeffrey, who is so adamant about not paying for children to eat, andpoor women to get preventative health care, would be ok with paying for someone who was too cheap to get health care."

What makes you think that? I'm all for denying them care if they can't pay.

By the way, I was notified today of some reform going on with my own doctor in Tampa, and I'm really excited about it. He's dissolving his practice and starting a concierge healthcare service. For $2000/year (plus normal fee for service) I get 24 hour access, longer consultation times and I'm guaranteed no waiting when I come to my appointment.

Obviously, he won't be accepting Medicare or Medicaid.

Georgia L.
Georgia L5 years ago

I think we should just let a bunch of states go form their own government based on no taxes, no contraception, no abortion, no public schools, no government jobs, no civil rights or women's rights, no minimum wage, and be Christian only. They will have to fight out which church runs it. They can give up all federal money in trade for that and live happily ever after.

Anne Cole
.5 years ago

We're talking the commerce clause here. If someone travels to a different state, and does not have insurance, and is in an accident, the people in that state will be paying for the medical.

I find it odd that Jeffrey, who is so adamant about not paying for children to eat, andpoor women to get preventative health care, would be ok with paying for someone who was too cheap to get health care.

Jeffrey W.
Jeffrey W5 years ago

"Who the hell says that the government cannot mandate that you, as a private citizen"

Looks like that would be the Constitution, as the Obama administration is just finding out.

Do you think part of the decision, when it's announced, will be a judgment for refunding the tuition paid by Obama's Constitutional Law students?

Eric Lees
Eric Lees5 years ago

@Charles P. Well Obama for one.

Obama on Ellen in '08: If Govt Mandated H'care Govt Could Mandate Buying A House

Jeffrey W.
Jeffrey W5 years ago

Audio of Verrilli making the government's case:

Charles P.
Charles P5 years ago

Who the hell says that the government cannot mandate that you, as a private citizen, purchase something you might not want and do not intend to use. Why are seat belts included in every car made in the U.S.? It is because it is federal law. So, whether or not you want seat belts, you still pay for them in thepurchase price of the car.

Dana R.
Dana R.5 years ago

This is a sad discussion, no fault , for the most part, of all the good, concerned citizens voicing their thoughts and feelings.

I am a provider, and like many of my colleagues who love our lifetime work(and not an insignificant number by any means) may not continue to practice due major ethical, practical and financial (in that order) implications that ACA represents. Decisions are being made on a widespread scale.

I will submit that there are some very good provisions in ACA, some that are long overdue and could enhance health care delivery. This much is good, and is the cover of the "pamplet" version that most have been given to peruse. It clearly conveys that ACA is for you, and you are the beneficiary. That's good enough for most, and why read on, even if you can know about the rest of it, much less find it. It's so expansive it's like buying a mansion (a huge one) designed by a thousand architects. Its nice and shiny complete with heros, with lots of hidden places for rats, cockroaches and spiders, snakes, many of them designed by the vermin themselves.

-ACA prime beneficiary is the insurance corporations. Listen to the discussions, that is who is being discussed.
-Insurance-that's what ACA is. Paying for it-that is what is being negotiated. They want to be guaranteed a large profit, otherwise they won't even be at the table.
-What they will pay for- as little as possible
-What you will pay, as much as is possible. Make no mistake-it's somebody's money, n