Brad Joondeph of the indispensable ACA litigation blog reminds us that Friday’s 11th circuit court of appeals ruling included a silver lining for health reform proponents: while the court struck down the individual mandate, it did affirm the constitutionality of a provision that requires states to expand their Medicaid programs to 133 percent of the federal poverty line. Here is Joondeph’s summation of why that section of the law is not “unduly coercive”:
1. The Medicaid statute specifically and explicitly warns participating states (42 U.S.C. 1304) that Congress may “alter, amend, or repeal” any provision of the program.
2. The federal government will cover almost all of the costs of Medicaid coverage expansion (100% for the first few years, declining gradually to 90% in 2020 and beyond).
3. The states have four years’ notice to decide whether they wish to comply with the new conditions or instead withdraw from Medicaid.
4. It is not a “foregone conclusion” that non-compliance with the ACA’s Medicaid provisions will lead to a loss of all of a state’s federal Medicaid assistance. See 42 U.S.C. 1396c.
“Taken together,” the court concluded, “these factors convince us that the Medicaid-participating states have a real choice–not just in theory but in fact–to participate in the Act’s Medicaid expansion.” (P.67)
So the Medicaid question is safe for now — and it’s unlikely that the Supreme Court will grant a review of that question. But it will almost certainly consider the individual mandate and as Joondeph predicts, “There is a very good chance the Court hears one of the cases this term, and hands down a decision in June 2012. But there remains at least a decent chance that the Court does not grant any of the cases until after January 2012, which would likely mean calendaring the case for the 2012 October Term, and a decision in the spring of 2013.”