I’ll try not to obsess too much about the apparent threat to Medicaid surprisingly opened up by the last round of oral arguments before the Supreme Court on ObamaCare earlier this week. But it’s disturbing because it’s not getting remotely as much attention as the threat to the individual mandate, and because it raises a potential constitutional line of attack on a host of other federal-state programs. Here’s Paul Krugman’s reaction to the discussion of Medicaid by conservative Justices:
I was struck, in particular, by the argument over whether requiring that state governments participate in an expansion of Medicaid — an expansion, by the way, for which they would foot only a small fraction of the bill — constituted unacceptable “coercion.” One would have thought that this claim was self-evidently absurd. After all, states are free to opt out of Medicaid if they choose; Medicaid’s “coercive” power comes only from the fact that the federal government provides aid to states that are willing to follow the program’s guidelines. If you offer to give me a lot of money, but only if I perform certain tasks, is that servitude?
Yet several of the conservative justices seemed to defend the proposition that a federally funded expansion of a program in which states choose to participate because they receive federal aid represents an abuse of power, merely because states have become dependent on that aid.
I have a very hard time understanding how one distinguishes a Medicaid expansion from Medicaid itself according to this “dependency” analysis. And for that matter, a vast array of other federal-state programs–involving everything from education to criminal justice to environmental protection to job retraining–utilize the same carrots-and-sticks approach. It is sometimes forgotten that state and local governments do the major work of delivering federally-funded domestic services in this country; the feds mostly cut checks and write regs. If a majority of the Supreme Court begins questioning the constitutionality of this relationship, we aren’t just looking at an invalidation of a Medicaid expansion, or even of Medicaid itself, horrid as that would be. We could be on the brink of having to reconsider our basic form of governing. I hope the Justices who so casually toss around contemptuous references to decades of precedents aren’t so arrogant as to throw us into that abyss.