What the Court has wrought: the coming Medicaid wars

Chief Justice John Roberts Part 1 of 2

The opinion of the Supreme Court (PDF) regarding the constitutionality of the Affordable Care Act has mostly drawn attention to the individual mandate. Five justices of the Supreme Court, the four less conservative justices plus the author of the opinion, Chief Justice John Roberts, found that the individual mandate was a valid exercise of Congress' taxing power. I myself have focused much attention on the views expressed by the five conservative justices regarding Congress' power under the Commerce and Necessary and Proper powers and the threat these views may pose to our conception of our modern national government as established by the New Deal and court decisions of the era.

But there is no doubt that the first effects of the Court's decision will come in the area regarding ACA's Medicaid expansion provisions. For the first time ever, the Supreme Court ruled that Congress had exceeded its spending power by placing "coercive" conditions on federal funding to states. A peculiar aspect of this part of the Court's decision is that only three justices joined this part of the opinion; remarkably, Justices Breyer and Kagan joined the chief justice in this part of the opinion while Justices Ginsburg and Sotomayor dissented. Normally, a holding of the Court requires at least five assents to the result. In this case, the four conservative dissenters did not assent to any part of Chief Justice Roberts' opinion, despite the fact they appeared to agree with everything in it except the taxing power holding. Conceivably, lower courts could in fact ignore the Medicaid expansion portion of the chief justice's opinion as dicta, not a holding of the Court, but this would fly in the face of the fact that seven justices actually agreed with the result. This seems an unlikely occurrence.

The apparent temper tantrum of the four conservative justices (they clearly should have at least joined in the results they agreed with in the chief justice's opinion) is not likely to have an actual effect on how lower courts (or the federal government and the states) will interpret the decision.

But this is only the beginning of the chaos the chief justice's opinion creates regarding the Medicaid expansion issue. Most commentary has focused on the pronouncements of many Republican governors (such as Louisiana Governor Bobby Jindal, Texas Governor Rick Perry and Lex Luthor himself, Florida Governor Rick Scott) that their states will not accept Medicaid expansion as provided for by ACA. Nor indeed, they've declared, will they establish the state insurance exchanges which ACA requires.

With regard to the exchanges, ACA provides that the federal government can establish insurance exchanges in those states where the state refuses to do so itself. Much less clear is what the federal government can do with regard to the Medicaid-related provisions of ACA. Unlike the apparent assumption of the chief justice and Justices Breyer and Kagan, ACA makes many changes to the Medicaid structure that are not dependent upon the expansion of Medicaid eligibility to person at 133 percent of the federal poverty level. What of those provisions? Are those "optional" for the states? If so, which ones? And what options does the federal government possess regarding states that reject not only Medicaid expansion but also modifications to the "existing" Medicaid program? In many ways, the opinion of the chief justice raises more questions than it answers.

I'll explore some of these issues on the flip.

Continue reading on the other side...