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March 30, 2012 1:04 PM Attack On Medicaid: A Whole New Abyss Opens

By Ed Kilgore

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.

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

  • K in VA on March 30, 2012 1:31 PM:

    I echo your fears.

    Many in the pundit class seem to believe we'll end up back where we were two years ago if the Court throws out Obamacare.

    I think that's way too optimistic. I think we'll go backwards, to less Medicare, to higher rates for private insurance (forcing more people to drop it), to higher rates for workplace insurance (because insurance companies will charge more), to more employers dropping coverage for their employees (leaving more people uninsured).

    And Medicaid, probably in some horrible ways we can't yet imagine, will be cut back to some extent. And Medicare? I have nightmares if I think too much during the day about what could happen to Medicare.

  • Another Steve on March 30, 2012 1:43 PM:

    There is a dangerous lack of understanding on the part of the MSM, even the supposed SCOTUS experts, of where the law the Court would have to make to overturn ACA would leave us. And, by a remarkable coincidence, the government those decisions would leave us looks amazingly like the last Ryan budget.

  • Patrick Star on March 30, 2012 1:48 PM:

    Given the fact that I just turned 53, I should be more hip to this stuff, but don't most private health plans basically punt you to Medicare at age 65? If that's the case, then pretty much everybody is dependent on Medicare at some time, no?

  • kevo on March 30, 2012 1:49 PM:

    More than likely there is no coordinated conspiracy to render our legislative branch incapable of effectively making and implementing policy, let alone, governing!

    Yet, most of us who have common sense and the ability to paint by the numbers have noticed conservatives allowing extreme non-legal, non-constitutional arguments to prevail in the canyons of their own minds, and now are hoisting them upon us in their resistance of everything save those immediate circumstances that they themselves agree, even in defiance of our consensus driven constitutional heritage! -Kevo

  • Kathryn on March 30, 2012 1:49 PM:

    II believe Scalia, Thomas and maybe Alito would do so without a thought, the first two are definitely that arrogant. One gets the impression that they are totally unaware of how hard it is for tens of millions of Americans live and struggle and furthermore, they don't care. Listening to Scalia ham it up for laughs on the Supreme Court tape about the length of the bill should make any sane American sick to their stomach. He and Thomas are disgraceful political hacks on the highest court of the land., callous, smug and out to get Obama.

  • beep52 on March 30, 2012 1:52 PM:

    @ Patrick Star: This article is about Medicaid, which is for low-income adults, their children, and people with certain disabilities. Medicare, which you refer to, is for the elderly.

  • Kathryn on March 30, 2012 2:00 PM:

    Well said Kevo. @Patrick Star.....when you hit 65, nearly everybody goes on Medicare, you sign up at Social Security (phone or in person), then Medicare becomes the first insurer to pay your medical bill and most people keep their other insurance as secondary coverage, if they're lucky enough to have it. Medicare typically pays 80% of what they deem reasonable. They knock off big amounts of the original charges before they pay the 80%. Some people delay signing up for Medicare if they are still working, believe they pay slightly more by signing up late (not positive, but think so).

  • DAY on March 30, 2012 2:08 PM:

    Kevo's conservatives got much of their "theories" from Ayn Rand. Probably during a sophomore kegger.

    If you have never been hungry in your entire life, it is all too easy to say that hunger builds character.
    Like our absent commentator c u n d gulag, only by being unemployed for years, can one understand the despair it breeds.

  • T2 on March 30, 2012 2:45 PM:

    beep52.....I don't think of a 65 year old as "elderly".....you must be quite young?

  • Patrick Star on March 30, 2012 3:04 PM:

    Thanks to all for the help on Medicare. I think Scalia and Thomas like to think of themselves as part of the 1%: they're always hobnobbing with the Koch's and are well-connected with the gilded class. They seem utterly, even willfully, removed from the concerns of everyday Americans, much less the poor. And Scalia's act is really starting to wear thin; someone needs to pull him aside and tell him that he's not cute and he's not funny and lovable, he's just another smug, arrogant and sanctimonious old asshole and it's not funny in the least to joke around about removing programs that help millions of Americans to just survive.

  • cmdicely on March 30, 2012 3:11 PM:

    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.

    You've already failed. (And it wasn't really surprising that the Justices would ask probing questions on a point specifically before them on review, and nothing was "opened" by it. If anything, it was "opened" by the original case challenging PPACA in which the Medicaid expansion was challenged.)

    But it's disturbing because it's not getting remotely as much attention as the threat to the individual mandate

    It's not getting as much attention because compared to the individual mandate:
    (1) There's less basis in either Court precedent or the past opinions (whether with the majority, concurring, or dissenting) of sitting Justices to suspect that it might actually be found unconstitutional, and
    (2) Unlike the challenge to the individual mandate, it wasn't successful in any of the lower-court challenges to PPACA.


    and because it raises a potential constitutional line of attack on a host of other federal-state programs.

    It doesn't "raise a potential constitutional line of attack on a host of other federal-state programs" it repeats a constitutional line of attack which the Supreme Court has rejected again and again against a host of other federal state programs. (e.g., South Dakota v. Dole (1987), in which a 7-2 majority including Justice Scalia upheld such conditional funding even when the condition sought to direct the State exercise of a function specifically reserved to the State by the Constitution under the 21st Amendment.)

    The combination of advances in communication and technology and the incredible amount of media attention poured onto the controversies over the Patient Protection and Affordable Care Act mean that a lot of people are listening to (or reading transcripts of) the oral arguments in this case (or reading and responding secondhand to commentary on them), but most of them are doing them without much context with regard to oral arguments (well, plus there are the mainstream media legal commentators that always pontificate on oral arguments in high profile cases.)

    If a majority of the Supreme Court begins questioning the constitutionality of this relationship, we arenít just looking at an invalidation of a Medicaid expansion, or even of Medicaid itself, horrid as that would be.

    Well, no, that's not true at all. You seem to equate "begin questioning" with "end questioning with an answer in the negative on the broadest possible grounds", which isn't exactly a valid equivalency.

    If they begin questioning it, they are just doing their jobs when the issue is before them in a case.

  • Peej01 on March 30, 2012 3:20 PM:

    Beep52...a good chunk of Medicaid goes to elderly people...or rather the nursing homes that they are in.

  • howard on March 30, 2012 3:47 PM:

    cmdicely, in all sincerity: what makes you believe that scalia, thomas, and alito give a rat's ass about precedent or case law if they think that the judging was wrong?

    i think roberts leans that way, but is considerably smoother, and i don't think that kennedy goes that far, which is why i continue to believe the court will uphold 6-3, but seriously, you speak of precedent with a court this radical?

  • cmdicely on March 30, 2012 6:15 PM:

    cmdicely, in all sincerity: what makes you believe that scalia, thomas, and alito give a rat's ass about precedent or case law if they think that the judging was wrong?

    First, what part of "Court precedent or the past opinions (whether with the majority, concurring, or dissenting) of sitting Justices" do you have trouble understanding?

    Second, what makes you think that Scalia, Thomas, and Alito think that the relevant cases were wrongly decided (especially Scalia, who was part of the Dole majority?)


  • DisgustedWithItAll on March 30, 2012 6:28 PM:

    "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.
    "

    That is exactly what they're going to do. It's too late for liberals/progressives to understand the viciousness the right will pursue without remorse it's goals in order to fight back. The spinelessness of Democrats and liberals/progressives in the face of their onslaught is going to result in a country most of us don't want to live in. Banana republic here we come brought to you by the Banana Republicans and spineless Democrats in the face of it.

  • Doug on March 30, 2012 8:44 PM:

    Dear DisgustedWithItAll, original thought is ALWAYS welcomed, cut-n-paste, not so much...