JONATHAN COHN MARCH 28, 2012
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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.
follow me on twitter @CitizenCohn
16 comments
Jonathan, with regard to your penultimate paragraph, I think most people would be for the proposition that freedom from crushing is good.
- ironyroad
March 28, 2012 at 4:41pm
Conservatives love the "devil made me do it" arguments; in this case, being "forced" to accept Medicaid because it's there. Of course states can opt out of Medicaid, but those same states will still have poor people who get sick or injured and doctors and hospitals insisting on some compensation for treating them, the only difference is that they won't have the federal government picking up most of the tab. The Supreme Court is a political institution, notwithstanding fairy tales about being mere umpires calling balls and strikes, and it will make a political decision about the fate of ACA. And that's as it should be, at least if you believe in democracy. There is no way Roberts will let posterity judge him and his Court by voting to upend the mandate and ACA. Nope, he will join the majority and uphold the mandate, and write the opinion circumscribing the commerce clause, establishing him as an astute Chief Justice who both "saved" health care reform and made its implementation very difficult.
- rayward
March 28, 2012 at 4:46pm
irony, lol. "Can you conceive of a state saying 'no,'" Oh, I can. Isn't Vermont considering a form of single payer? If a state had single payer then they would achieve economy of scale that they would not need medicaid funds (but would happily take them if offered)
- blackton
March 28, 2012 at 4:47pm
Har har, ironyroad. JC, we assume you meant "crushing debt"
- ClumsyMohel
March 28, 2012 at 4:53pm
Leaving aside the very real implications for millions of people, I have to say, this is turning out to be gripping stuff. I don't think I'll ever understand how your system ended up at this juncture, with Judges deciding medical public policy. I would have thought all the complexity boils down to your last two paragraphs Jonathan. ' As a side note, all the rubbish being talked about this being good for the Dems and O'bama? Complete nonsense. It would be a huge body blow, pretty much taking all of the good out of his first term, which is especially true with the revelations on his near catastrophic debt ceiling deal last year and financial regulation turning out to be near toothless.
- IggyPop
March 28, 2012 at 4:53pm
ironyroad I happen to enjoy a good crushing.
- Nusholtz
March 28, 2012 at 5:00pm
"Whether the justices paid attention, or even cared, I cannot say." I am still trying to figure out how government can compel young men and women to fight in a war in another country where we are not under attack, like vietnam, that can lead to their maiming and death, but cannot compel them to buy health insurance because it might lead to too much Broccoli.
- Nusholtz
March 28, 2012 at 5:06pm
Nush -- yes, indeed. Moi aussi, when I get a chance.
- ironyroad
March 28, 2012 at 5:23pm
Nus, the answer to the draft/Broccoli question is easy. Lead poisoning is better for you. I wish I were as optimistic as ray regarding the outcome. I see the poorly reasoned Citizens United, and a group of near-ideologues (or ideologues if you want) with reasoning skills not being much different than the guy on the street corner, to see tyranny everywhere, and put a halt to it. I don't see Roberts ego having any problems with dispensing with the entire ACA, and in may in fact allow him to believe that the future will judge him as heroic for doing so. I much prefer ray's analysis though.
- jet
March 28, 2012 at 5:40pm
Does depend on who's doing the crushing, yes?
- cspencef
March 28, 2012 at 5:40pm
Wasn't there some state who opted out of federal highway funds because it didn't want to comply with some traffic regulation (or was it a regulation that was not even directly traffic-related)? (Sorry, can't Google or Wikipedia the question at the moment, so I am calling on the collective wiki-wisdom of the TNR commenters.) That seems to me to be the same thing. (Not to mention that it makes no sense to find the expansion a problem if the states are essentially already in the same system. Talk about a question of where to draw lines -- how much money is so much that it becomes coercive?)
- shellski
March 28, 2012 at 5:45pm
I believe that Louisiana turned down federal highway funds for a time because it didn't want to pass the required new ID law making it harder for young people to buy alcoholic drinks.
- ironyroad
March 28, 2012 at 6:04pm
South Dakota wanted to opt out of raising its drinking age to 21 but would have lost a fraction of its federal highway funding. This was a high profile Supreme Court case and the ruling was against South Dakota (see South Dakota v. [Elizabeth] Dole). The year was 1987 and this was presumably the result of lobbying by MADD and other interest groups. That said, didn't Texas just lose some Medicaid funding for deciding to buck the feds' parameters? If it were really so coercive, no state could ever opt out of anything.
- chaitless
March 28, 2012 at 11:44pm
I mentioned above that the the Supreme's had no better reasoning skills that the man on the street. Correction, the right-wing Supremes is what I should have said. Anyway, today, Scalia proves me right by arguing about a section of the law that doesn't exist. http://www.slate.com/blogs/weigel/2012/03/28/does_antonin_scalia_know_what_s_in_the_affordable_care_law_.html I guess he could claim to join liberals in agreeing that the Cornhusker Kickback was a wasteful piece of pork. Scalia's almost in the right decade. I mean, that was so 2009.
- jet
March 29, 2012 at 2:09am
But wait! Has anybody presented THIS argument against health care? This is a win/win (for certain folks! Free Enterprise!) http://www.borowitzreport.com/2012/03/29/an-argument-against-healthcare/
- Sophia
March 29, 2012 at 1:41pm
PS IggyPop, hear hear. There is something amiss with our system. Think about Bush/Gore if you can bear it. PS Ralph Nader are you reading this?
- Sophia
March 29, 2012 at 1:44pm