At TAP today, Scott Lemieux raises several previously under-discussed points about the concurrence of Justices Breyer and Kagan in the portion of the majority opinion that invalidates the Affordable Care Act’s sanction of total withdrawal of Medicaid dollars from states refusing to implement the Medicaid expansion. Aside from speculating as to why progressives aren’t (aside from the occasional Glenn Greenwald) accusing the two “liberal Justices” of betrayal, Lemiuex wonders if they were forced or at least encouraged to cut some sort of deal with the Chief Justice to secure the fifth vote to uphold the rest of ACA:
[T]here was a unique strategic element to this case that gave a powerful reason for Kagan and Breyer to join Roberts. Roberts’s belated decision to uphold most of the ACA, first of all, probably compelled Kagan and Breyer to show some cross-ideological comity to encourage him to stay in the fold. Admittedly, we cannot know for certain what effect the strategic votes of Kagan and Breyer had on Roberts. (I hope that the Supreme Court leakers will find some time to tell us whether Breyer and Kagan changed their votes after conference.) Given that it’s unlikely that there was explicit horse-trading involved, it may always be unknowable. But this is where the first point becomes crucial. Liberals had nothing to lose by joining Roberts on this one issue, so they had no reason not to try to cement his belated switch.
Scott goes on, naturally, to deplore the consequences of the Medicaid part of the decision, and Lord knows I’ve written my share of lamentations on that subject.
But there is a more basic point that progressives need to consider beyond the immediate result in this case: is there some general point of progressive principle supporting the maximum degree of coercive power for the federal government in federal-state grant programs? Yes, beyond the Medicaid expansion, there are reasons to fear that this decision will soon spur lawsuits to invalidate “coercive” provisions in environmental laws and other major policies that rely on federal-state partnerships. But are these partnerships themselves inherently progressive?
Recall that the major purpose of the Medicaid expansion itself (as has been the case in a host of previous federal “improvements” to Medicaid) was to reduce the vast disparities in Medicaid coverage in the various states, a major source of the “uninsured” problem to begin with. Is the real offense to progressive values the enhanced ability of states to reject federal limitations on their control of Medicaid policies, or the original structure of Medicaid giving them that control in the first place? Certainly the decision to make a Medicaid expansion a key element in ACA was attributable in part to the desire to build on the most important existing program providing health insurance to those without meaningful access to private insurance (or to Medicare or VA), and in part to reduce, albeit not by that much, the federal costs associated with covering the uninsured. But as some state-level progressives have been arguing for decades, the continued reliance on federal-state programs to address national policy objectives comes at a considerable price of its own: the inevitable interstate inequities, a loss of accountability, and public confusion as to which level of government a central public function “belongs.”
As regular readers know, I’m personally not sold on a single-payer system (though I’m increasingly attracted to it), and don’t think just expanding Medicare to cover everybody necessarily makes sense or is the political silver bullet its proponents often assume it is. But the eventual goal of getting rid of the current patchwork system of government health insurance programs ought to be pretty fundamental to progressives. Would anyone designing a universal national system of health insurance (whether it’s single-payer or public-private) assume it was a good idea to make state governments central to its administration? Maybe, or maybe not. But the Court’s decision ought to make us reconsider whether the crutch of intergovernmental programs, so often utilized for short-sighted reasons, really ought to be the central instrument of progressive governance.
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