SCOTUS Preview Part IV: The Big Scary

The following is the fourth in a four part series previewing the four issues facing the Supreme Court in next week’s Affordable Care Act arguments.

In challenging the Affordable Care Act’s insurance coverage requirement, the law’s opponents seek an unprecedented expansion of judicial power that would eradicate all limits on what the nine unelected judges on the Supreme Court can do. Because their entire legal argument has, in the words of conservative judge Laurence Silberman, no basis “in either the text of the Constitution or Supreme Court precedent,” it eliminates any bounds on what judges can do to impose their will on the American people. If the Supreme Court has the power to strike down the individual mandate, there is nothing preventing it from forcing you to eat broccoli.

And yet, the assault on the mandate is only the second scariest thing the law’s opponents want the Supreme Court to do. To date, no judge has invalidated in ACA’s expansion of Medicaid to ensure that it covers everyone who earns up to 133 percent of the poverty rate. And yet anti-health care attorney Paul Clement is now asking the justices to take away this important expansion of health care to the most vulnerable Americans. If the justices take him up on this offer, it could threaten the very existence of Medicaid as well as numerous other programs funding education, low-income housing and countless other services for low-income Americans and children. Although Clement denies, it, his arguments threaten the very existence of numerous programs that millions of American depend upon.

Like several other federal programs, Medicaid is partnership between the federal government and the states. Under Medicaid, the feds offer funding to the states to enable them to provide health services to the poor. The states are free to take this money or to leave it on the table, but if they accept it they are required to comply with certain conditions. Thus, everything about Medicaid is voluntary. States can always reject Medicaid funds outright if they don’t want to comply with federal Medicaid law.

Clement, however, claims that the recent expansion of Medicaid is unconstitutional because it somehow “coerces” the states into taking Medicaid funds, but this is no more true than it would be true that someone who accepts a job that pays them $1 million a year to do very little work has been “coerced” into taking it. Medicaid is a very good deal for the states, and this is only more true after it was expanded by the ACA, as the federal government picks up 90 percent of the costs of the Medicaid expansion under the ACA. There is no coercion when someone takes a good deal.

To get around this problem, Clement offers a series of increasingly complex arguments, the most distressing of which threatens the very existence of Medicaid itself:

Federal spending is not a product of Congress’ “generosity,” in disbursing funds that materialize out of thin air. Federal funding is overwhelmingly composed of tax dollars collected from the States’ own residents. Accordingly, when the federal government makes conditional funding offers to the States, it is “impos[ing] its policy preferences upon the States by placing conditions upon the return of revenues that were collected from the States’ citizenry in the first place.” Were a State to refuse to comply with Congress’ conditions, “federal taxpayers in [that State] would be deprived of the benefits of a return from the federal government to the state of a significant amount of the federal tax monies collected.” The larger the amount of the funds conditioned, the less realistic the State’s purported option of turning down the funds. Its practical ability to ask residents, already taxed by the federal government to provide health insurance elsewhere, to contribute additional taxes to supplant the declined federal program is all but nil.

In essence, Clement is arguing that the ACA’s Medicaid expansion is unconstitutional because it is funded from tax revenues that come from the residents of the several states. But the same can be said about Medicaid as a whole. Or about federal education funds. Or about federal housing funds. Or about any other federal spending program. Clement’s argument would wipe out much of America’s safety net and leave millions of Americans to fend for themselves.

This is why Clement’s anti-Medicaid argument is the scariest thing in this litigation. The Supreme Court is unlikely to accept his argument, but if they do, America will become a far crueler nation overnight.