JONATHAN COHN MARCH 28, 2012
The hearings are over, finally. The afternoon argument, over the Affordable Care Act's expansion of Medicaid, was as contentious as the rest -- with the justices giving both the government and the states challenging the law extra time to make their arguments.
This time, the liberals wasted no time in pressing Paul Clement, attorney for the 26 states, about his assertion that the law's expansion of Medicaid for the states was coercive. Clement was basing his argument on three contentions, most important among them the idea that the states, having agreed long ago to accept so much Medicaid money to finance care for the poor, were now completely dependent upon it -- and that the federal government, by threatening to withhold that money if states don't implement the plan according to federal guidelines, was effectively giving the states an offer they could not refuse.
Defenders of the Affordable Care Act have said that Clement's argument would just as easily invalidate the existing Medicaid program as well as other federal programs, which operate on the same principle. And the liberal justices made that point, Stephen Breyer pointing out that the coercive power Clement decries dates back to the original Medicaid statute, from 1965. Elena Kagan took a different approach, asking why the federal government can't put conditions on what amounts to a very large gift of funds.
For a change, the conservative judges were tough on Clement, too. Justice Antonin Scalia (actually, it may have been Chief Justice Roberts -- I'll check the transcript) wondered why the Court should intervene on behalf of states that don't like Medicaid, when the states decided on their own to join the program -- and, in effect, had to live with the consequences. Clement parried the questions, conjuring up obscure statutory and judicial references to make his case. (I can see why people say he is so talented.) But the distinction he suggested, that the Medicaid expansion was unique because it was just so large, didn't seem to allay the concerns.
Solicitor General Donald Verrilli also got tough questioning -- again, more from the conservatives, who, if failing to see the distinctions Clement had proposed, nonetheless seemed open to the idea that the Medicaid program really was coercive. "Can you conceive of a state saying 'no,'" Scalia asked at one point. "That's coercion." Later Samuel Alito made a similar comment: "How can this not be coercion?"
Again, I'm not making any guesses on what these questions to suggest, about what the justices are thinking or how they'll eventually rule -- except to say that, generally, the government's case seemed to have more support than it did in the last two hearings.
Verrelli closed his remarks with a soliloquy, tying together discussion of both the Medicaid expansion and (on Tuesday) the minimum coverage requirement. After acknowledging that the case was about liberty, he told the court that access to life-sustaining health care and freedom from crushing are also forms of liberty.
It was his best moment in the entire three days of hearings: He pointed out the consequences of repealing part while reminding the justices that judgments about good policy, the kind the justices made frequently during oral arguments, are best left to Congress.
Whether the justices paid attention, or even cared, I cannot say.
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