An Unexpected Attack on Medicaid

Going into this week’s oral arguments before the Supreme Court, I think it’s fair to say that hardly anyone thought the challenge to the constitutionality of the Affordable Care Act’s Medicaid expansion would succeed. After all, Congress had mandated expansion of Medicaid coverage many times in the past, and after all, states are not required to participate in the program at all. Thus, it seemed logical to conclude, the Court wouldn’t strike down the Medicaid expansion unless it were willing to question the constitutionality of Medicaid itself, and it sure wouldn’t do that, right?

That’s not quite so clear after today’s concluding oral arguments.

Here’s how Peter Landers of the Wall Street Journal’s live blog of the arguments put it:

In an interesting turn Wednesday, the Supreme Court’s conservative justices repeatedly questioned not just the expansion of Medicaid but the basis for the entire program.

That raised the possibility, however remote, of a ruling that would throw out a 47-year-old pillar of the nation’s health-care system along with the two-year-old Obama health law.

The program gives the federal government the power to direct certain spending by states so long as states remain in Medicaid. Chief Justice John Roberts said that “seems to be a significant intrusion on the sovereign interests of the state.” The federal government argues that if states don’t like the spending, they can simply drop out of Medicaid. And at Wednesday’s arguments, the government said federal officials would generally work with states to ensure that any expansion of the program is workable for both sides.

But the justices said they were troubled by the federal government’s ability, at least in theory, to threaten states with the withdrawal of Medicaid money if the states didn’t follow Washington’s orders. “Part of the discretion is to cut off all of the funds,” said Justice Antonin Scalia.

Even more ominously, swing-vote Justice Anthony Kennedy joined the chorus of “concern” about Medicaid’s coercive nature, and even about the “loss of accountability” that would occur when the federal goverment excessively controlled the rules governing Medicaid while the states actually administer it (the basic structure, as it happens, of Medicaid and a host of other federal-state programs).

SCOTUSBlog’s Lyle Denniston was also struck by the unexpected direction of the discussion:

Unless a closing oration by a top government lawyer stirs some real sympathy for the poor, the new health care law’s broad expansion of the Medicaid program that serves the needy may be sacrificed to a historic expression of judicial sympathy for states’ rights. It probably would require the Court to be really bold, to strike down a program passed by Congress under its spending power, and to do so for the first time in 76 years, but the temptation was very much in evidence in the final round of the Court’s hearings this week on the Affordable Care Act. It probably would be done by a 5-4 vote.

Maybe these suspicions are unfounded, but at this point, with the Court teetering on the edge of a decision that would represent a pretty massive repudiation of precedent, I wouldn’t put much anything past them. And Medicaid, folks, is a much bigger deal than ObamaCare.

Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.