Health Care And The SCOTUS Day 3, Part II: The Purpose Of Power

Let’s be very clear about how Medicaid works. Medicaid offers each state a pool of money to provide health care to low income Americans. States can take or leave the money if they wish, but if they take the money, they agree to comply with certain conditions. If a state violates one of these conditions, the Secretary of Health and Human Services can dock their funds or potentially cut off funds entirely if the violation is sufficiently egregious.

This was the system in place when President Johnson signed Medicaid into law in 1965. It was the system in place after President Reagan expanded it to cover many new pregnant women and children in 1984. It was the system in place when Reagan expanded Medicaid again in 1985 and in 1988. And it was the system in place when new expansions were added in the 1990s. It each expansion, the bargain remained the same, states could accept the new conditions added by these expansions, or they could walk away from Medicaid. If they took the money and failed to comply with the conditions, they risked having their funding cut off.

In 2010, President Obama followed in his predecessors’ footsteps by expanding Medicaid through the Affordable Care Act. Yesterday afternoon, the Supreme Court flipped out. Although the five conservative justices’ objections to this most recent expansion often rested on other grounds, they almost always circled back to the same objection. The Affordable Care Act expands Medicaid, and the Secretary retains the exact same power she has had since 1965 to potentially cut off all of a state’s Medicaid funds if a state refuses to comply with any of the new conditions — so Obamacare could cause these states to lose all their Medicaid funds if they don’t comply with the new conditions.

Now, let’s be clear. If these justices are right that this Medicaid expansion is unconstitutional, than it also means that every single expansion since 1965 is also unconstitutional. That means stripping millions of the poorest and most vulnerable Americans of their only access to health care. Immediately.

Nor will the fallout be limited to Medicaid. As Justice Ginsburg pointed out, many universities received federal funding in 1972, when Congress enacted Title IX’s requirement that they must cease discrimination against women if they want to keep their funding. This too would be unconstitutional under the conservative justices’ theory. As would every other similar expansion to these education funds after they were first enacted.

It is rare that a single moment in a Supreme Court argument perfectly distills the difference in world view between the Court’s liberals and its conservatives, but such a moment occurred today. When Solicitor General Verrilli explained, correctly, that no Secretary has ever used their power to cut off a state’s Medicaid funding completely, Justice Alito expressed bafflement that any person could possess such an awesome power and refrain from using it. How, Alito wondered, could it be a “realistic possibility” that “we are not going to cut off your old funds, and just let that condition sit there?”

Justice Kagan soon weighed in with this answer:

[W]hen the Secretary withdraws funds, what the Secretary is doing is withdrawing funds from poor people’s health care, and that the Secretary is reluctant and loathed to take money away from poor people’s health care. And that that’s why these things are always worked out. It’s that the Secretary really doesn’t want to use this power, and so the Secretary sits down with the State and figures out a way for the Secretary not to use the power.

To Justice Alito, power is something that is to be wielded — just as he and his fellow conservatives appear dangerously close to casting the Constitution aside and striking down the Affordable Care Act simply because they can. To Justice Kagan, power is a sacred trust granted to our national leaders on the promise that they will use it lawfully and compassionately.

There are five of him, and only four of her.