-Zachary Bernstein

House Majority Whip Rep. Kevin McCarthy (R-CA)

Last night on Fox News, House Majoriy Whip Kevin McCarthy (R-CA) claimed that the Republicans were just trimming the fat from the budget and getting rid of wasteful spending:

VAN SUSTEREN: But these cuts — I mean, these cuts — I mean, some of the cuts, I mean, just — you know, there are — there’s money sitting in our government. There’s some fat that we can.. some of these cuts. I mean — the fat is incredible!

MCCARTHY: Then you would support what we’re doing. That’s we’re doing committee by committee!

Watch the clip:

So what do McCarthy and the GOP consider budget fat? The New York Times today offered some details:

The Congressional Budget Office estimated that the bill would push 1.8 million people off food stamps and could cost 280,000 children their school lunch subsidies and 300,000 children their health insurance coverage through the federal and state Children’s Health Insurance Program. Elimination of the social services block grant to state and local governments would hit child abuse prevention programs, Meals on Wheels and child care.

A further 23 million would be affected by the repeal of the Social Services Block Grant, which helps fund child care and disability assistance to low-income Americans.

In fact, eliminating the Bush tax cuts for the wealthiest Americans would more than provide the savings the Republicans are seeking, twice over.

But not only are House Republicans protecting “largely useless” weapons systems and programs by cutting needed social services, their motivation stems from trying to prevent military spending cuts of nearly $500 billion over ten years because of the Budget Control Act’s sequestration trigger. Luckily for the GOP, the Center for American Progress has found more than $500 billion in Pentagon cuts — i.e. the real budget fat — that could be implemented over the next decade while still maintaining our vast military superiority.

While GOP plan has no chance of passing the Democratic-controlled Senate, the AP noted yesterday that it is “likely just a sample of what’s in store next year from Republicans if Mitt Romney wins the White House and the GOP takes back the Senate.”

In an issue brief released last week, the conservative Heritage Foundation called for “transitioning” Americans out of Medicaid and “into more popular private health insurance options.” While the brief praised the block grant proposal from Ryan as an “important change,” it made clear that, in their view, even more action was needed:

The House Republican budget took important steps with regard to Medicaid by calling for the repeal of Obamacare and putting Medicaid on a budget. However, this is just a down payment on what needs to be done. The next—and equally as important—step is to put policies in place that restructure the Medicaid program so that low-income individuals and families are mainstreamed out of Medicaid and into the private health insurance market. In this way, Congress can expand the private insurance market, ensure more robust competition, and secure the kind of care that the vast majority of working Americans have today. At the same time, Congress needs to restore Medicaid to a true safety net program for the most vulnerable in society.

What Heritage did not say in their brief is that Medicaid actually costs less than private insurance. According to Families USA, it costs 20 percent less for Medicaid to cover lower-income Americans than private health insurance plans, which may not cover all the services those people need. And a study from the Kaiser Family Foundation released last week found that the rate of growth in Medicaid spending was actually lower than for private insurance plans.

Ryan’s block grant plan would cut federal spending on Medicaid by a third, dramatically reducing access to care and costing 14 million people access to care. If the Affordable Care Act was repealed, as Heritage and Paul Ryan both call for, the private insurers the brief suggests take over could also deny those people coverage because of a pre-existing condition. Under this plan, the “most vulnerable” Americans Heritage claims to be worried about would suffer.

-Zachary Bernstein

“It would have been impossible for Massachusetts to do what it did without increased federal Medicaid support,’’ said John McDonough, a major architect of the state’s health care overhaul law and now director of Harvard University’s Center for Public Health Leadership.

“What he’s proposing is in direct opposition to what he did as governor,’’ said Amy Whitcomb Slemmer, executive director of Health Care for All in Massachusetts, citing the Bay State’s 98 percent coverage rate, the highest in the nation. “That kind of expansion would not have been possible under a block grant program,’’ as Romney has proposed.

Indeed, Romney funded his 2006 health care expansion by re-appropriating state funds and relying on additional federal Medicaid funding he secured from the Bush administration. As Romney himself explained to Bill O’Reilly in April of 2010, “[F]rom the beginning the plan was a 50/50 deal between the federal government and the state government. The Feds fund half of it, they have from the very beginning.” The Boston Globe notes that “approximately 56 percent of the gain in coverage was related to increased federal Medicaid support” in Massachusetts, and of the newly insured, “18 percent gained coverage through Medicaid, and another 38 percent gained coverage through Commonwealth Care, a program that federal Medicaid dollars pay half of.”

As a presidential candidate, however, the former governor has argued that he could lower federal spending on Medicaid by transferring control of the program to the states and transforming the current matching-rate funding structure into block grants that would pay states pre-determined funding amounts. The “blocks” would not increase with health costs or automatically rise during economic downturns.

According to a Congressional Budget Office (CBO) analysis of Rep. Paul Ryan’s (R-WI) Medicaid block grant proposal — which is very similar to Romney’s — federal expenditures on the program would be “49 percent lower in 2030 than current projected federal spending.” “[T]he magnitude of the reduction in spending relative to such spending in the other scenarios means that states would need to increase their spending on these programs, make considerable cutbacks in them, or both,” the Office concluded. “Cutbacks might involve reduced eligibility for Medicaid and CHIP, coverage of fewer services, lower payments to providers, or increased costsharing by beneficiaries—all of which would reduce access to care.”

Rep. Todd Rokita (R-IN)

Currently, the federal government matches state Medicaid spending on a per-claim basis and pays a fixed percentage of each state’s Medicaid costs so long as they adhere to certain federal guidelines. For instance, the Hyde Amendment already prevents states from spending any federal Medicaid funding on abortion services, with exceptions for rape and incest or when the life of the woman is threatened. Seventeen states have elected to provide more comprehensive abortion benefits, but pay for these procedures with state funding.

Rokita’s bill would dramatically change this. Like most Republican proposals, his legislation turns Medicaid into a block grant program that would give states a set amount from the federal government, letting them shape their own Medicaid programs with fewer federal standards and requirements. But states would be banned from covering abortion services, even with state funds, unless they buy separate health plans that include abortion insurance or only cover abortion care. As Mother Jones’ Nick Baumann explains, this would cost the 17 states that provide abortion coverage millions of dollars:

Those states do not generally purchase separate plans that cover abortion, several current state Medicaid officials and former state Medicaid directors told Mother Jones. Instead, they simply use state money to foot the abortion-related portion of the cost of the insurance. [...] Under the GOP proposal, that practice would be illegal.

Rokita’s bill “would be a significant change from how current law operates today,” adds Judy Waxman, the vice president for health and reproductive rights at the National Women’s Law Center. [...]

Requiring states to purchase separate abortion-only plans “would be a change and one that would be harmful to women in those states,” Waxman says, noting that the current structure has stood for decades without interference from Republican or Democratic administrations.

So far, 30 House Republicans have co-sponsored the bill, and the Republican Study Committee included the proposal in its official budget.

As part of the December deal to avoid a government shutdown, Congress banned funding for abortion services in D.C. The anti-abortion policy rider prohibited D.C. from even using local taxes to pay for abortion services, reinstating a 13-year ban on abortion funding in D.C. that President Obama overturned in 2009.

Rokita touted his plan as a way to get the federal government out of the way and to give states greater flexibility — so long as that flexibility does not include letting the states create their own policies on providing abortions for low-income women.

A new analysis released today looks at how those bonuses have increased enrollment nationwide. The study from the Georgetown University Center for Children and Families examined the 23 states that received performance bonuses for enrolling more children, and found that this program has already had better-than-expected effects:

Data on the bonuses show that in the 23 states that received bonuses in FY 2011, an additional 1.1 million kids were enrolled above expected levels. The most (123,000) can be found in the state of Ohio. While we can’t say that the bonuses fully explain this jump in enrollment, it would certainly be fair to say that they get some of the credit for supporting states in reaching these kids.

As we’ve seen over the years, Medicaid and CHIP have been responsible for driving the uninsured rate of children down to record lows. These bonuses have been an important incentive in making this progress and dismantling them threatens to undercut the great success we’ve seen in Medicaid and CHIP.

Over 12 million children were enrolled in the program in all 23 states combined. Altogether, those states boosted their enrollment numbers 10 percent higher than the expected level, and earned close to $300 million in bonus money for doing so. Thanks in large part to CHIP, the rate of uninsured children is at the lowest-recorded level ever.

As ThinkProgress reported yesterday, the cuts are not expected to pass the Senate this time around, but there is worry among children’s health advocates that they may be reintroduced at a later date. President Obama’s recent budget proposal did call for a change in the federal matching rates for CHIP beginning in 2017.

-Zachary Bernstein

Rep. Joe Barton (R-TX)

As part of an effort to reduce health spending by $115 billion, Republicans on the House Energy and Commerce Committee voted last week to cut $400 million from a program designed to make it easier for children in lower-income families to gain insurance through Medicaid or the Children’s Health Insurance Program (CHIP) and offer bonuses to states that see increases. According to Politico, 23 states have received bonus money for enrolling more children, with 16 of those boosting enrollment by more than 10 percent. While the proposal’s immediate future is dim, opponents say there is a chance it could resurface later on:

Although the Senate is unlikely to pick up this measure, [Executive Director of Families USA Ron] Pollack said he’s concerned it could reappear when Congress returns after the elections with a full plate of legislation in need of offsets.

“When you start with the House-passed budget and efforts like this, while it’s clear that they’re not going to become law, it’s just part of an opening bell about how the Republicans in the House want to handle a larger effort that will take place some time after the elections,” he said.

The lead sponsor of this bill, Rep. Joe Barton (R-TX), claimed weakening the eligibility requirements to boost coverage encouraged more people to try and game the system. But as Politico noted, the study he cited to back up his claim did not include any data specific to the bonus program Republicans are seeking to cut.

Here is what CHIP actually has done: It has helped cut the national rate of uninsured children to the lowest recorded level ever, keeping millions from losing all health coverage, and pushing long-term health costs lower. The program Republicans want to cut, meanwhile, paid out close to $300 million in bonuses last year alone and has already encouraged states to streamline their enrollment processes, eliminating bureaucratic waste.

The Republican budget presented by Rep. Paul Ryan (R-WI) would make dramatic cuts to child care funding and nutrition programs, and leave millions uninsured or underinsured.

-Zachary Bernstein

Ryan’s proposal would cut federal Medicaid funding by $810 billion, or 22 percent, over the next ten years, according to an analysis by the Center on Budget and Policy Priorities (CBPP). By 2022, states would be receiving an average of 34 percent less in federal Medicaid funding than they would under current law, a rate which would continue to rise alongside health care costs. As CBPP notes, the effects of this proposal could be devastating not just to state budgets, but also to millions of Americans who rely on the program:

States would have to offset these federal funding shortfalls by substantially boosting their own contributions to Medicaid or, as is more likely, using the greater flexibility that a block grant would provide to make deep cuts to eligibility, health and long-term care services, and/or provider reimbursement rates. Last year, when Chairman Ryan included a similar Medicaid block-grant proposal in his budget, the Urban Institute estimated it would lead states to drop between 14 million and 27 million people from Medicaid by 2021 (in addition to the 17 million people who would no longer gain coverage because of the repeal of the ACA’s Medicaid expansion).

States could respond to the funding dropoff by finding more revenue to pay for it themselves, through tax increases or spending cuts, or by cutting eligibility. As one protestor said of the cuts, “they’re gonna kill us first…If we can’t stay in our home, if we can’t get the things we need through Medicaid, we will die in the streets without that type of thing.”

– Zachary Bernstein

State Health Officer Don Williamson, who heads the Alabama public health department, said he will report to lawmakers next week if Alabama can satisfy minimum federal Medicaid standards under the proposed budget. “I don’t think there’s any way in the world any human being can make this budget work at $400 million without serious cuts to someone,” Williamson said. And because dialysis treatment could be on the chopping block, he warned legislators during the budget hearing that the cuts could lead to deaths, according to Alabama Arise:

The state is not required to cover dialysis treatments under Medicaid, but Williamson said cuts to the $4.5 million that the state spends on those services would be unrealistic because they would be tantamount to a death sentence for those patients. “I know exactly what happens if you don’t dialysize people,” Williamson said. “They’re dead in two weeks.”

Committee chairman Rep. Jim Barton (R) admitted that the budget situation is dire. “There isn’t much about this budget that is pleasing to the eye,” he said. But one legislator pointed out that Alabama cannot survive for long on a cuts-only system for balancing the budget. “At some point, we’re going to have to have some courage in this body and look at revenue-generating measures,” Rep. Merika Coleman (D) said.

Despite claims that the budget “empower[s] individuals with greater control over their futures,” the Republican budget written by Rep. Paul Ryan (R-WI) does the opposite. As CAP’s Katie Wright explains, “By choking off opportunity for women and children of all ages, the budget leaves poor women to fend for themselves and puts the American Dream further out of reach.”

Here’s a chart that outlines how the GOP’s war on women’s economic security hits women at every stage of life:

“We’re told that Medicaid would simply be handed over to the states,” Obama explained. “But here’s the deal the states would be getting. They’d have to be running these programs in the face of the largest cut to Medicaid that has ever been proposed.” According to the Center on Budget and policy Priorities, the Ryan budget would reduce federal spending on Medicaid by $810 billion and would provide states with smaller “block grants” to run their health care programs. “A cut that according to one nonpartisan group would take away health care for about 19 million Americans,” Obama said, before turning to the GOP’s proposal to transform Medicare into a premium support structure:

OBAMA: Instead of being enrolled in medicare when they turn 65, seniors to retire a decade from now would get a voucher that equals the cost of the second cheapest health care plan in their area. If Medicare is more expensive than at private plan, they will have to pay more if they want to enroll in traditional Medicare. If health care costs rise faster than the amount of the voucher, as, by the way, they have been doing for decades, that’s too bad. Seniors bear the risk. If the voucher is not enough to buy private plan with bit specific doctors and carry need, that’s too bad. Most experts will tell you the way this voucher plan encourages savings is not through better care or cheaper costs. The way these private insurance companies save money is by designing and marketing plans to attract the youngest and healthiest seniors, cherry picking, leaving the older and sicker seniors in traditional Medicare where they have access to a wide range of doctors and guaranteed care, but that makes the traditional Medicare program even more expensive and raises premiums even further. The net result is our country will end up spending more on health care and the only reason the government will save any money is at — is because we have shifted it to seniors. They will bear more of the costs themselves. It is a bad idea. It will ultimately end Medicare as we know it.

Watch it:

Indeed, a Center for American Progress analysis of Congressional Budget Office (CBO) data finds that new Medicare beneficiaries could actually end up paying as much as $1,200 more per year by 2030 and $5,900 more per year by 2050 for health care benefits. The Republican budget would shift these costs to beneficiaries by limiting the growth in Medicare spending per beneficiary to growth in the economy plus 0.5 percentage points — a rate that is much slower than the projected growth rate under current law.

As a result, under their budget, CBO projects that average spending would rise to only $7,400 in 2030 and to only $11,100 in 2050. Since the Republican budget would convert Medicare spending into vouchers, these dollar amounts would be the amounts of the vouchers, on average. In other words, “CBO projects that government spending per beneficiary would be $1,200 lower in 2030 (the difference between $8,600 under current law and $7,400 under the Republican budget) and $5,900 lower in 2050 (the difference between $17,000 under current law and $11,100 under the Republican budget).”

The Republican budget never specifies how it planst to enforce its cap on Medicare spending and in the absence of any other enforcement mechanism, it’s likely that the cap would be enforced by limiting the amount of vouchers provided to beneficiaries. After all, we know that capping the vouchers is the clear policy goal of Republicans—we need look no further than the budget they proposed last year. The vouchers, therefore, would likely be capped at CBO’s projected spending per beneficiary under the Republican budget: $7,400 in 2030 and $11,100 in 2050. And since these amounts would be much lower than actual costs, beneficiaries would be left to pay the difference.

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.

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.

We don’t think that — whether it’s Planned Parenthood or one of their affiliates — that they should be getting our dollars to be used in their programs. And we see, whether it’s Planned Parenthood directly or whether it is one of their affiliates that is involved directly in the abortion business, ah, our legislature is pro-life, overwhelmingly voted to not allow Planned Parenthood to be receiving any of these dollars, and yet this administration, in clear violation of the Tenth Amendment of the United States — ah, they’re just playing politics.

Watch it:

Perry, of course, also believes that Social Security and Medicare are unconstitutional, so his views on the Constitution aren’t exactly credible. Nevertheless, Perry’s claim that Texas has a right to openly defy federal law and still expect to receive all the federal funds he wants is particularly unfortunate.

As ThinkProgress previously explained, Medicaid is one of many federal programs where the federal government offers money up to the states in return for their agreement to comply with certain conditions. States may take the money and accept the conditions, or they may refuse the money outright. But they cannot take the money and then refuse to use it as the federal government instructs them to use it for the same reason that someone cannot take a job, refuse to comply with their own job description and then expect to continue to draw a salary.

One condition that Medicaid law places on the states is that the states must allow patients to freely choose their own health provider — even if that provider is affiliated with an organization the state doesn’t like. Texas doesn’t want its Medicaid beneficiaries to have this choice, which is Texas’ right, but Texas does not have the right to openly defy federal law and expect the federal government to pay for it.

Indeed, it should be obvious why Texas cannot have this right. If Texas can defy one part of Medicaid law, it can defy any part of Medicaid law. Under Rick Perry’s reading of the Tenth Amendment, there’s nothing preventing Texas from taking billions in Medicaid funds and then using them to build a luxurious new wing onto the governor’s mansion.

According to the report, as of 2009, low-income children received 70 percent of government funding for children — a respectable portion of overall federal spending dedicated to the needs of those under 18. But while the straight numbers look good for poor kids, those children’s future prospects are frightening.

The Urban Institute “estimate[s] that low-income children receive 99 percent of housing expenditures, 98 percent of expenditures on nutrition, 97 percent of health expenditures, and 94 percent of expenditures on social services.” So, of course, cutting the budgets for these areas would disproportionately affect children:

If these services sound familiar, it’s because many are the same programs that Republicans have aimed to cut in their most recent budget proposals — specifically, housing, nutrition, and health.

Millions of children have been kept out of extreme poverty by programs like food stamps, and the overall poverty rates would have been twice as high in 2010 without the social safety net. Surely, the opposite effect would occur with any cuts to welfare, social security, medicaid, or the other programs that keep these kids afloat.

Justice Anthony Kennedy

Fortunately, our assessment of Douglas was not correct. By a narrow 5-4 margin, the Supreme Court decided to put off until another day a complex legal issue that could render much of our Medicaid law unenforceable.

As we explained last October, Medicaid is the largest example of a federal/state partnership where the state agrees to set up a program to help its citizens and the feds agree to put up much of the money necessary to keep this program running. When a state agrees to participate in Medicaid, they must also agree to comply with the network of federal laws governing the Medicaid program, including a requirement that the state’s Medicaid program pays health providers enough to “ensure that enough providers will participate in the Medicaid program so that patients will have meaningful health care access.”

Beginning about a decade ago, however, the Court began making it harder for these laws to actually be enforced. Under this new line of cases, it became harder and harder for private individuals to actually enforce Medicaid and similar laws — only an action by the federal government itself could be used to ensure that states comply with the law. Douglas threatened to complete this process, making much of the law largely unenforceable by the people it is intended to protect.

The Court’s four conservatives joined a dissent indicating that they are ready to do exactly that. Justice Anthony Kennedy, however, broke with his fellow conservatives to punt this question until another day — ordering a lower court to consider whether a recent decision by a federal agency makes deciding the issue in the Douglas case unnecessary. In other words, today’s decision is largely a nothingburger.

Should the Court eventually adopt the dissenting justices’ view, the result would be that the availability of programs like Medicaid could swing wildly depending on who is in the White House. As we wrote in October:

[T]he short term effect will be that only the Obama Administration will have the power to enforce key provisions of the Medicaid law — and patients and health providers will just have to trust that Obama’s team does an adequate job of enforcing the law. That may not seem so bad, but what happens if the Obama Administration gets replaced with the Perry Administration or the Palin Administration or the Ryan Administration or some other administration that is actively hostile to enforcing the Medicaid laws? If a future Administration shows no interest in enforcing the Medicaid statute, then entire provisions of law could effectively cease to exist until a more progressive president is elected.

Hopefully, today’s surprising vote by Justice Kennedy to punt this case means that he is not prepared to turn this prediction into a reality.