Is ObamaCare's Medicaid Expansion Unconstitutional?

The 26 states who've signed onto a group challenge to the law in court are arguing that it's not merely ObamaCare's individual insurance mandate that's unconstitutional. Their suit also charges that the law's Medicaid expansion, which expands the joint federal-state health program for the poor and disabled to cover everyone earning up to 133 percent of the poverty line, is legally suspect as well. In the past this argument hasn't gotten much traction. The Examiner's Philip Klein explains:

Paul Clement, the former solicitor general who represented the states, argued that the Medicaid money represents such a large amount of their budget, that they can't realistically refuse to accept it. Furthermore, he said that the problem with the law is that it doesn't merely say that if states don't expand Medicaid, they don't get any new money. It says, if states don't expand Medicaid, they lose all their Medicaid funding, even that which existed before the expansion passed. If Congress had tied the choice to accept new beneficiaries to the new money instead of the preexisting funding, Clement argued, they wouldn't be challenging the law.

The government has argued in response that Medicaid is voluntary, and that if states don't like the new expansion, they can drop out of the program. Even Judge Roger Vinson, who ruled against the mandate and struck down the entire law as a result, agreed with the government's logic. It's clearly a weaker argument. 

But it may still have legs. A panel of judges at an appeals court in Atlanta heard arguments on the case yesterday and reportedly seemed more open to the case against the law's Medicaid expansion: 

The panel also showed sympathy to a secondary claim in the states' case involving Medicaid. The plaintiffs say the law's expansion of Medicaid to 16 million lower-income Americans unfairly burdens states, which eventually must pay some of the medical costs for those new beneficiaries.

Judge Vinson ruled against the plaintiffs on that part of the case. But Judge Dubina said states had made a "powerful" argument that such an expansion amounted to coercion.

Comments

[Eric Holder]

Is ObamaCare's Medicaid Expansion Unconstitutional?

No.

[MNG]

"the Medicaid money represents such a large amount of their budget, that they can't realistically refuse to accept it"

Wow, that's a terrible argument, no one is forcing them to take the money because it is such a large amount...

[Pro Libertate]

This is so fucked up. How did we get here?

Even for the leftists hoping for socialized medicine, opening the door--really all the way--to the federal government having general police powers is very scary. Things you may really, really dislike become possible when the government lacks all restraint. Keep in mind that there's a probability that the GOP will have more control over the government in 2013--do you really want this sort of precedent? Really?

[SugarFree]

I can only assume it's meant to be some sort of scare tactics for shoring up the base. "See, we've let the right people have all the power they want. Don't ever let the wrong ones back in again!"

[Nancy Pelosi]

How did we get here?

Are you serious?

[Lord Humungus]

This isn't a slippery slope, it's a gaping wound.

[Pro Libertate]

I just don't get it. All the bitching and moaning about Bush, then they act like that never happened. Mark my words, the way this will play out is that the Democrats will keep expanding government power at an accelerated rate--more so now, that they've become more openly socialist--then the GOP will reap the rewards to the point where the American Empire is in their hands, permanently. Probably decades from now, but it will happen if we keep playing footsies with unlimited government power.

It's like history never happened, and all the founding literature was burned in a big bonfire.

[cynical]

"This is so fucked up. How did we get here?"

It's the nature of democracy to become corrupted and eventually fail. Plato may have been an asshole, but he got that one right.

[R C Dean]

I think the argument goes something like this (or should):

The feds have extracted billions of dollars from the resident of a state to pay for Medicaid.

Since that state's federal Medicaid match (or most of it, at least) came from the state, there are limits on the restrictions the feds can impose on their return of the money.

If you there are no limits on the restrictions feds can impose on states to get their own money back, then there is nothing left of state autonomy.

Like the Commerce Clause argument, this really just presents an issue that has existed ever since the feds started funding state activities. It was easy to paper over when the funds were small and/or the restrictions were minimal, but those aren't principled limits on federal power.

Now we have a case which isn't so easy to ignore, which highlights the illegitimacy of a very broad range of federal activities. By going along to get along in previous challenges, the judiciary has made its bed. Let's see if they can get out of it.

[Brett L]

How bad is your appeal going when you get grilled on the part of the case already against you AND get the part you one reconsidered?

[Michael Pack]

Most of what the feds do is unconstitutional.Hard to believe much of it started by growning wheat at home.I'm so tired of 'progressives saying health care is different.You need food and shelter as much as 'health care.

[Ken Shultz]

"The government has argued in response that Medicaid is voluntary, and that if states don't like the new expansion, they can drop out of the program."

It's interesting that states can participate in these things "voluntarily" but individuals may have no such right.

Oh, and for the record--and my own sanity? ObamaCare sucks regardless of whether it's constitutional.

[Zeke]

Government--all government--is coercion, extortion and naked force. This is just an example.

[Anthony Weiner]

There was no naked force.

[Ken Shultz]

Actually, enforcing contracts that people enter into voluntarily is not coercion.

Actually, punishing criminals for imposing themselves on others--against a victim of coercion's will?

That isn't coercion either.

Coercion is the difference between rape and sex. Coercion is the difference between accepting a donation and armed robbery.

Coercion is the difference between murder and self-defense! "He was going to kill me--I didn't have a choice!" That just means he was coerced.

Coercion is crime. The government isn't being coercive when it sentences an armed robber to jail. That's why "criminal intent" is so important. Anyone who goes to prison because they committed armed robbery? Does so voluntarily. They willingly gave up their rights when they purposefully coerced someone with a gun. They did it of their own free will.

Protecting people from coercion is not crime. Righting coercion is not crime. Our government may be coercive now? But it doesn't need to be. The only legitimate function of government in my book is protecting people's rights.

The government protecting people's rights from various forms of coercion is not the same thing as coercion.

[cynical]

Why don't we take a page from early progressives and start cranking up some Constitutional amendments? Here's one, stripped of legalese:

A) Feds cannot give money directly to any state.

B) Feds cannot discriminate on the basis of state residency with their spending.

C) The Feds may not levy taxes of any sort. All fines and penalties (regulatory or otherwise) require criminal due process, including a jury.

D) The Feds must fund themselves by payments received from the states, apportioned on the basis of representation in those states as per the electoral college (so, small states still get a bit more representation per capita, but have to pay for the privilege). Basically, Congress sends each state a bill for services rendered (snicker away).

The nice thing is that with the bulk of government funding arising from the states, we can have much more experimentation with tax policy to better identify those which do less harm in the process of raising revenue.

[adam]

I'm still wondering why some state doesn't just say, f it, I'm dropping medicaid in 2014. All the people that would be in medicaid would the be eligible for the subsidized exchanges, so they'd still have a source to get health insurance, so no one is getting thrown out on the street. Actually the exchange insurance would be quite a bit better. And all of the exchange subsidies come from the feds with zero state share, so bam, I just covered all those people and saved my state budget billions. Can someone please explain why a state that wanted to f over Obama wouldn't do this?