Low income people in Alaska are on the verge of getting health care. So, in a story that’s become so familiar that it’s practically a cliché, Republican elected officials filed a lawsuit on Monday trying to prevent this expanded access to health care from happening.
As a bonus, they’re sending the bill for this lawsuit to the state’s taxpayers.
Last month, Alaska Gov. Bill Walker (I) announced that he would expand Medicaid under the Affordable Care Act despite opposition from the state’s Republican-controlled legislature. According to an opinion drafted by the Alaska Legislative Affairs Agency’s non-partisan Division of Legal and Research Services (DLRS), Walker “likely has authority to accept additional federal funding to provide expanded Medicaid coverage” without seeking the legislature’s approval.
Nevertheless, the Alaska Legislative Council, a Republican-controlled legislative committee that can bring suits in state court, agreed to spend up to $450,000 in public money on a legal team including Republican superlawyer Paul Clement. Clement, who has urged courts to adopt conservative positions on issues as diverse as immigration, health care, voter suppresion, health care and gay rights, is the de facto Solicitor General of the Republican Party — an experienced Supreme Court advocate frequently hired by Republican lawmakers and interest groups to argue landmark cases.
If past is prologue, it is likely that the total bill for this legal team will exceed $450,000. In 2011, for example, U.S. House Republicans hired Clement to defend the anti-gay Defense of Marriage Act for “a sum not to exceed $500,000.00.” This contract was amended several times to raise this cap, however. In the end, the American people paid Clement’s legal team $2.3 million to unsuccessfully defend the proposition that same-sex couples are not entitled to the same federal marriage rights as opposite-sex couples.
Clement raises several attacks on the state’s Medicaid expansion, but the case is likely to turn upon how a specific provision of Alaska law interacts with a partial victory Clement achieved in a different case seeking to deny health care to needy Americans. Under Alaska law, “[a]ll residents of the state for whom the Social Security Act requires Medicaid coverage are eligible to receive medical assistance” under the state’s Medicaid program. Moreover, the Affordable Care Act, which amended the Social Security Act to create the Medicaid expansion, is written in mandatory terms. Thus, taken together, these two legal provisions suggest that Alaska must provide expanded Medicaid coverage under Obamacare.
In NFIB v. Sebelius, however, the Supreme Court held that it is unconstitutional for Congress to “penalize States that choose not to participate in” the Medicaid expansion “by taking away their existing Medicaid funding.” States that do not expand Medicaid in compliance with the law still face a consequence — they are denied funding for the Medicaid expansion itself. But this is a different consequence then the one Congress intended when it enacted Obamacare.
In essence, Clement argues that NFIB fundamentally altered the nature of the Medicaid expansion such that states are no longer required to expand Medicaid for purposes of the Social Security Act. The DLRS opinion, by contrast, suggests that the fact that NFIB altered the consequence for states that refuse to expand Medicaid may not overcome the fact that federal law still says that the expansion is mandatory. It’s a semantic game that, until this point, had very little practical impact — does a mandatory program become optional if its mandatory nature is only backed by a very weak sanction?
In Alaska, however, this semantic distinction could literally have deadly consequences. An estimated 42,000 Alaskans will be eligible for health coverage under the Medicaid expansion. If Clement prevails, they will lose that eligibility.