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March 28, 2012 5:32 PM An Unexpected Attack on Medicaid

By Ed Kilgore

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 is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.

Comments

  • Ron Byers on March 28, 2012 5:47 PM:

    How many people will die on Scalia's States Rights Alter? Since the nursing homes will all fold up in an instant, I would guess hundreds of thousands over the first year or two.

    The tottering old fools on the Supreme Court are about to start a revolution. I don't think any of us will like the outcome.

    Apparently for them the Hunger Games is a road map and not a cautionary tail.

  • esaud on March 28, 2012 5:53 PM:

    I am scared $h1tle$$. I am looking at the deaths of three family members unless something positive happens here. One severely disabled brother on Medicaid, one sister on $2000/week medication barely making it by with the crappy insurance she pays through the teeth for, one cousin with advanced cancer who was "separated" from her employer.

    Conservatives are a bunch of sociopaths. I see no way out. I cannot imagine what things will look like in 20 years.

  • Mimikatz on March 28, 2012 5:55 PM:

    What I have been most afraid of is that Congress would decide that they ought to get rid of the requirement that emergency care centers treat people with emergencies regardless of ability to pay to assuage the hospital lobby after the ACA falls. Now it seems even worse--the Court may get rid of Medicaid too. What ever happened to Christian Charity? How did we ever get to the place where we are going to have people dying in the streets like some third world country? What has happened to us as a people? If this had been the attitude of our forebears the US would never have been settled. Maybe that would have been better than this dog-eat-dog, devil-take-the-hindmost society we have evolved into where everyone hangs onto what they have in fear of sliding backwards, and dumps on everyone below them.

  • Unhappy Legal Professional on March 28, 2012 5:56 PM:

    Forgive me.

    .Supreme Court Wrangling Aside, We Still Need 'Medicare for All'
    John Nichols on March 27, 2012 - 2:44 PM ET
    It would seem that the majority on the US Supreme Court is conflicted about how to respond to the healthcare reform currently known as "Obamacare."

    CNN's legal correspondent Jeffrey Toobin listened to the high court's deliberations this week and concluded that "this was a train wreck for the Obama administration. This law looks like it's going to be struck down."

    Not so fast, suggests the Wall Street Journal, which like most media pins the outcome on Justice Anthony "Swing" Kennedy. "Justice Kennedy's early comment that the government carried a 'heavy burden of justification' showed considerable sympathy for the challengers," observed the Journal Tuesday. "But toward the end, one of his questions suggested that people who don’t carry health insurance are still engaged in the healthcare market—which is the central pillar of the government's case."

    It's all so confusing. Or maybe not.

    It is obvious enough that the barely cloaked political partisans who dominate the court would like very much to whack the Democratic president by declaring that critical components of his Patent Protection and Affordable Care Act—or, to borrow Vice President Biden's technical terminology: Barack Obama's "BFD"—are unconstitutional.

    By the same token, the justices know that their conservative movement's paymasters in the insurance and healthcare industries, and on Wall Street, are actually looking foward to the day when the government requires Americans to purchase insurance from for-profit insurance companies, and when Washington steps in as the guarantor of payments to those companies (and to for-profit healthcare concerns) on behalf of low-income Americans.

    Tough call, indeed.

    It is usually smart when such conflicts arise to bet on the corporate crowd, as they really do call most of the shots.

    But on the outside chance that the court goes rogue—as some analysts are suggesting after two days of hearings on the plan that was approved by Congress and signed into law by the president—is that the end of healthcare reform?

    Frankly, it could be the beginning.

    It is not like a decision by the Supreme Court to scrap all or part of the current plan is going to make the crisis facing America's dysfunctional healthcare "system" go away. In all likelihood, it would cause the crisis to become even more of, well, a crisis.

    By the same token, allowing the Obama plan to go forward in its current form—without the protection that would have been afforded by a public option—is not going to solve nearly as many of the plan's problems as its more starry-eyed proponents might imagine. Indeed, one of the selling points for the Obama plan when progressives were gritting their teeth and deciding to support what was clearly a compromise was the understanding that the Patiet Protection and Affordable Care Act was a beginning, not an end.

    The end has always, and should always, be the single-payer "Medicare for All" plan that would provide quality care for all Americans—as a right—and cut costs by eliminating the profiteers.

    So how, amid all the legal wrangling of the moment, should real reformers think about things?

    “Whether the Court overturns part or all of the law, or the Affordable Care Act remains fully intact, we will not have universal coverage, medical bills will still push too many Americans into bankruptcy or prompt them to self-ration care, and insurance companies will continue to have a choke hold on our health,” says Deborah Burger, RN, a co-president of the 170,000-member National Nurses United union.

    NNU, a union that represents frontline healthcare providers—and that has taken then lead when it comes to real reform—offers a savvy respone to the hyperbole that's coming from in and around the Supreme Co

  • gab on March 28, 2012 5:57 PM:

    They won't have the guts to do it. Could there be any better platform for the Democrats to run on in the fall than those crazy republican-appointed bastards took away Medicaid?

  • kindness on March 28, 2012 6:00 PM:

    Is it time for the march up to the Supreme Court with burning torches & pitchforks yet? Sounds like it.

  • DCSusie on March 28, 2012 6:00 PM:

    Ok, it's official, SCOTUS no longer has a damn thing to do with law, the Constitution, or anything other than the 'justices' personal opinion of how the country should be run. I'm about at the point of my own 'bring it on' moment: Let's eliminate Medicaid and toss all the geezers out on to the street, let half the pregnancies in the country happen without access to medical care, and so on. For the last 3 decades, Republipigs have been getting away with the argument that their radical policies could be implemented without causing any harm to society, and it does not seem possible to counter that argument with reason, so maybe it's time for some blood to flow in the streets.

  • bigtuna on March 28, 2012 6:08 PM:

    So the idea is that the federal government can create and fund programs that are run by states. But, the federal government cannot have a say in how that money is to be spent?

    What else? Federal funding for highways? Does that mean that some states can use the funding for crappy materials, bad designs, and others would stick to better matierals, better designs? Federal funding for research grants at universities? Univ x in state x can go by one set of rules, and Y State can go by another? etc etc etc???

    Do these Souless SCOTUS bastards have a brain at all????

  • cmdicely on March 28, 2012 6:27 PM:

    Ok, it's official, SCOTUS no longer has a damn thing to do with law, the Constitution, or anything other than the 'justices' personal opinion of how the country should be run.

    I think people are going a bit far in their confusion of Justices' questions and comments during oral argument (and, worse, second-hand commentary on those questions and comments) with official action by the Court.

    Stop hyperventilating. People are trying to read tea leaves, and, as usual, the most extreme prognostications get trumpeted the loudest. That's because they are the most shocking, not the most likely.

  • MuddyLee on March 28, 2012 6:28 PM:

    This Supreme Court seems to be on the verge of throwing the country into chaos - Medicaid is paying for a lot of nursing home beds (there are very few private pay residents where my mom is) in South Carolina. Do these crazy conservative justices know what it's like out here in the real world? If we end up with programs completely run by states without federal oversight, then most of the Southern states become like Third World countries. Of course the Supremes are living in the very rich DC area and they may be blissfully ignorant. As a Christian Left person, I say God Help America.

  • Unhappy Legal Professional on March 28, 2012 6:38 PM:

    In my opinion the Supreme Court might as well be burning crosses on the lawns of the Washington malls.

  • schtick on March 28, 2012 6:41 PM:

    That people can't be denied care if they have no insurance coverage is nothing but bull. With the media letting them toss out those lies and get away with it is one of the biggest problems when dealing with this crap. Let those idiots we vote in go to any doctor and see what the first question they ask is. How do you plan to pay for this? If the answer is that you don't plan to pay, I imagine you follow the red line to the exit. There are no doctors in my area that do freebies.
    The ER argument is an even bigger lie. What part of EMERGENCY ROOM do they not understand? It's for emergencies, not checkups and runny noses and getting a refill prescription. Besides, it isn't free even if you do get care for free. The cost is passed on to the insurance companies and patients that do pay.
    They need to talk to people in the accounting department of hospitals to get a better idea of how that works. 25% of a hospital bill goes to people that can't or won't pay. If they take away the options that do pay, even if they only pay a little, it will probably go up to 50% or more.
    These people, mostly the tealiban, but dimwit dems, too, don't have a clue about what goes on in the real world, never will, and really don't give a shit. They got theirs, screw everyone else. And all on the taxpayer dime.

  • cmdicely on March 28, 2012 6:44 PM:

    This Supreme Court seems to be on the verge of throwing the country into chaos

    If you listen to the accounts of the most irrationally cheerful right-wing commentators and the most irrationally fearful left-wing commentators and the most desperately attention-seeking commentators, and ignore everything else, yeah, it sure seems that way.

    Anyone that is telling you how the Supreme Court is likely to rule based on oral argument is either projecting their own hopes and fears onto the issue or seeking attention in the certainty that you'll forget who made the prediction by the time an opinion is handed down, so they won't be held accountable for being wrong.

  • Unhappy Legal Professional on March 28, 2012 6:49 PM:

    I hope you are right, cmdicely-- and in the past I was always the eternal optimist

  • howard on March 28, 2012 6:51 PM:

    but cmdicely, what is true is that there are 4 justices on this court who do not have the slightest interest in precedent if they think the original decision was wrong, and that's not being hysterical.

    i personally doubt that kennedy will join them, and i think that roberts will want to be in the majority, so i see a 6-3 vote to uphold, but that shouldn't change the general recognition of the radical nature of the 4 right-wingers and their disdain for a whole set of decisions from the new deal on forward.

  • Doug on March 28, 2012 7:50 PM:

    Should, I repeat should, the SC overturn Obamacare(s), what are we then left with?
    Single payer. Based, in some form or other, on Medicare.
    Unless, of course, the SC rules that SS/Medicare are also unconstitutional...

  • FlipYrWhig on March 28, 2012 8:02 PM:

    @ Doug, we are left with single-payer as a solution -- and a massive headwind against that solution by people and forces that don't want a solution at all. There's no reason to think that Republicans will offer a solution. They don't believe in one. They believe in letting people die. So people will die.

  • axt113 on March 28, 2012 8:34 PM:

    I dare the Conservative judges to kill Medicaid and all of Obamacare, I dare them, the backlash would be huge, Obama would probably win reelection in a landslide not seen since 1920, the Dems would sweep the house and the senate

  • Karl Hungus on March 28, 2012 8:45 PM:

    There isn't anything 'unexpected' about the introduction of Medicaid into the discussion. The R strategy all along has been to 'just let me put the head in". This suit is just the 'head'. Once you strike down ACA you can strike down Medicaid and if you can strike down Medicaid, you can strike down Medicare. If you can do one you can do the others. It's the R plan now. It's been the R plan all along. They're giddy because they can't believe how easy it is. But, as usual, once this one is gone and the other programs are weakened or gone, health care will belong completely to them. A poetic unintended consequence. They have no idea or alternate plan other than to resurrect under a new name and call it good. The D's may be the worst sales people around but even they can make that case. To paraphrase, 'it was the R's what done it'.

  • stinger on March 28, 2012 8:45 PM:

    These are the people who felt themselves perfectly entitled to appoint a President. Voter backlash can't touch them, and their decisions can turn this country back 100 years for the NEXT 100 years.

    f'in captcha

  • sjw on March 28, 2012 10:20 PM:

    Please remember that Roberts lied when he was vetted before Congress, stating that he held precedent ("stare decisis") to be extremely important ... and once confirmed has rejected precedent on several occasions already.

  • ceilidth on March 28, 2012 10:36 PM:

    Let's just kill anything that helps a human being. Congress is meaningless; the president is meaningless. We know what we want and we don't even need to read the dumb law. We're here for life and you just need to bend over.

  • tcinaz on March 28, 2012 11:39 PM:

    If this Supreme Court is willing to strike down Medicaid at this point,so be it. i will be the end of the Court's viability as a fair arbiter of justice. Some paths are simply too extreme, and if they follow this one their credibility will cease to exist. I'm sure t least four or five or even six of the Justices know this.

  • RepubAnon on March 28, 2012 11:49 PM:

    Wow, I'm sure glad that Ralph Nader ran that 3rd party challenge to Al Gore... it gave us Alito, Roberts and Kennedy.

  • Cha on March 29, 2012 2:10 AM:

    Tell Jeffrey Toobin to stop hyperventilling and spouting doom & gloom. So many others are keeping a cooler head.

  • Vokoban on March 29, 2012 6:01 AM:

    IF they strike down Medicaid the implications cannot be over-estimated. The entire basis of your country will be at play.

    This could easily be the death kiss for the federation.

  • bob h on March 29, 2012 7:22 AM:

    I really think there should be consideration of something that should have been done in Bush v. Gore but wasn't- ignoring the Court in the event of a total reversal on bullshit grounds. Andrew Jackson did it, and Obama knows the Constitution better than these clowns on the Court.

  • boatboy_srq on March 29, 2012 9:27 AM:

    I think we need to take into account the inherent laziness of SCOTUS. Remember Citizens United may have been a bad decision, but it was a decision made with the expectation that Congress would see the glaring hole in federal campaign law and do something about it. The consequence of the decision, instead, was for Congress and the GOP Presidential field to go hogwild seeking corporate and PAC funding for campaigns. SCOTUS was apparently oblivious to this very likely outcome and expected Congress to be sufficiently mature to curb corporate rights instead of greedily grabbing for the newly available campaign cash.

    In this case, it is probably equally likely that SCOTUS will take existing law into account, as well as the substantial additional revenue to the insurers, and take little meaningful action - again expecting that if Congress disapproves then it's up to Congress to make the changes it deems necessary. On the Medicare/Medicaid portion of the argument, while there are probably not that many medical practices that depend on those programs for viability, losing either or both will mean not only a curtailment of services, but a not insignificant loss of jobs and revenue for most providers. Losing those $$s will most definitely turn much of the healthcare industry against the libertarian arm of the GOP on this issue: it's one thing to say a federal policy is overreach, and another to agree that stopping that ovverreach can affect your pocketbook without complaint or challenge.

  • Texas Aggie on March 29, 2012 11:05 AM:

    Being a right winger, like the majority of the "Justices" on the SC, means that empathy doesn't exist in your cramped, little soul. There is no way that they will identify with people who depend on Medicaid because they don't depend on Medicaid. This business of lack of empathy has been shown numerous times by psychological research into motivations and attitudes of authoritarian type personalities, which are also inherent in being a right winger. Scalia, Thomas, Roberts, Alito and Kennedy are the way they are, and nothing short of electric shock therapy is going to change them. Appealing to their better natures is futile because they don't have better natures. Otherwise they wouldn't be right wingers.

    The modern conservative is engaged in one of man's oldest exercises in moral philosophy; that is, the search for a superior moral justification for selfishness. -John Kenneth Galbraith

  • Texas Aggie on March 29, 2012 11:19 AM:

    For those who think that this court isn't quite happy with destroying the whole foundation of our safety net in the interests of their ideology, I give you the Bush vs. Gore decision, the Lily Ledbetter decision, the Citizens United decision, and all the other decisions where they twisted themselves into legal pretzels to further their ideology. If they were capable of doing these kinds of contortions in the past, there is no reason that they will have any qualms about shutting down Medicaid and the ACA. Then they go onto Medicare and other programs that benefit ordinary people but that don't affect them because of their economic status. To argue otherwise is a sign of not being able to cope with reality.

  • emjayay on March 29, 2012 11:48 AM:

    Thank God we have a bunch of good conservative justices appointed by Republicans on the Supreme Court, not those antiAmerican activist type ones.

  • Reasonable on March 29, 2012 1:55 PM:

    This is poppycock by the WSJ, offering red meat for the base. Roberts also asked Clement a question akin to: "If they take this money with all the strings, aren't they giving up their sovereign rights, and if they take the strings and tie them together, should they be surprised when the Feds pull the strings?

    The Act has some parts where it has real risk of being struck. This isn't at the top of the list.

  • iamanole2 on March 29, 2012 3:22 PM:

    You know its great to finally see some commenters who are just as angry as I am at this right wing activist court. They most likely wont kill it all, but enough of their opinions have been so far out there and wrong that it can be easily discerned that it is they who are the activist judges and it is they who are actively rewriting the constitution. The right knows this- that is why they continually try to paint the so called 'left" leaning judges activist.

  • boatboy_srq on March 29, 2012 4:03 PM:

    @iamanole2:

    According to the Teabag-to-English translations, "activist judges" are justices who hand down decisions Teabaggers don't like, usually benefiting some otherwise disenfranchised person or group that they'd like to keep firmly underfoot, or justices who think that justice should be for ALL Americans not just the Elect portion with whom Teabaggers identify. Actual judicial activism - see Thomas, Clarence or Alito, Samuel - in the same translation is "good and righteous application of all the virtues and privileges the Founding Fathers believed in but (unfortunately) fell short of explicitly enumerating in the Declaration of Independence;" that pesky Constitution thing was a product of compromise intended to keep the soon-to-be wealthy and productive heathen Yankee unionists from leaving the Union with all the money which should really belong to the Real Ahmurricans of the Confederacy.