John Marshall to John Roberts: "WTF?"
After yesterday's argument, it seems the individual mandate has little chance of surviving the machinations of the radically conservative Roberts Court. The question now is just how radical is the Roberts Court? Is it a modern day
Lochner court? Two questions to be argued today pose the question in the most important and stark terms: Will the radical Roberts Court strike down the Medicaid expansion provided for in ACA on specious "federalism" grounds? Will the radical Roberts Court strike down the entire ACA?
The pernicious consequences of such action, not only in terms of the policies of health care reform but to our entire Constitutional system of government, could not be graver. The radical Roberts Court appears to be proposing a return to a pre-1937 governmental structure. It is an appalling and amazing development.
The Roberts Court is indeed The Most Dangerous Branch.
Here are the legal issues presented today:
(1) Does Congress exceed its enumerated powers and violate basic principles of federalism when it coerces States into accepting onerous conditions that it could not impose directly by threatening to withhold all federal funding under the single largest grant-in-aid program, or does the limitation on Congress's spending power that this Court recognized in South Dakota v. Dole, 483 U.S. 203 (1987), no longer apply? [Normally I would note that this is a ridiculously argumentative presentation of the question. But I bet the Roberts Court sees it as a fair presentation]
(2) Congress effected a sweeping and comprehensive restructuring of the Nation's health-insurance markets in the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010), as amended by the Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111-152, 124 Stat. 109 (2010) (collectively, the "ACA” or "Act"). But the Eleventh Circuit and the Sixth Circuit now have issued directly conflicting final judgments about the facial constitutionality of the ACA's mandate that virtually every individual American must obtain health insurance. 26 U.S.C. § 5000A. Moreover, despite the fact that the mandate is a "requirement" that Congress itself deemed "essential" to the Act's new insurance regulations, 42 U.S.C. § 18091(a)(2)(I), the Eleventh Circuit held that the mandate is severable from the remainder of the Act. [I have chosen the challenger question presented because I think it more fairly reflects the question to the radical Roberts Court.]
The question presented is whether the ACA must be invalidated in its entirety because it is non-severable from the individual mandate that exceeds Congress' limited and enumerated powers under the Constitution.
Soak in just how radical these questions are. It seems unimaginable that in the year 2012 such questions could be considered to be serious. Now consider the concession already provided on the severability question by the Obama Administration. In its
brief on severability (PDF), the Obama Administration states:
In the event , however, that the Court does have occasion to address severability [...] the Obama Administration says the parties do not have standing to seek the the striing down of the entire ACA) the place of the minimum coverage provision in the larger statutory context would again be relevant. In particular, without minimum coverage provision [the mandate], the guaranteed-issue [the ban on preexisting conditions restrictions] and community rating provisions would drive up costs and reduce coverage, the opposite of Congress's goals. They are therefore inseverable from the minim coverage provision and must be invalidated if the Court finds it unconstitutional
No ban of denial of coverage for preexisting provisions, no community rating, no medical expense ratios. And that is the Obama Administration's position!! But other than that, how are you liking this ACA play?
But hey, we can still have the expansion of Medicaid and subsidies to purchase private insurance right? Not so fast, my friend. Even though NO court has even considered ruling the Medicaid expansion unconstitutional, this radical Roberts Court has swooped in to bring the issue front and center.
On the flip, I will consider the legal arguments involved, but at this point, I am convinced that the law has absolutely nothing to do with what this radical Roberts Court will do. Judicial activism is a polite description of what is going on here. The impolitic description is a radical conservative coup d'etat.
(Continued on the other side)
In its opening brief, the federal government's primary argument for severability appears to be that these challenging parties lack standing to seek that remedy:
1. Because no entity regulated by the guaranteed-issue and community-rating provisions is a party in this case, the court of appeals erred in addressing whether those provisions are severable from the minimum coverage provision. Accordingly, in the event the Court invalidates the minimum coverage provision, it should vacate the portion of the lower court’s judgment finding those two provisions severable.
2. This case likewise does not present an appropriate vehicle to consider petitioners’ broadside challenge to the myriad other provisions of the Affordable ¢are Act. private petitioners presented no evidentiary basis below to establish any cognizable interest in invalidating any provision of the Act other than the minimum coverage provision, nor have they contended that they have independent standing to do so.
The situation is largely the same for state petitioners. If the Court first agrees with the constitutional challenge to the minimum coverage provision advanced by the individual petitioners with standing to bring that challenge, state petitioners, as large employers, would then have standing to challenge the Act’s employer responsibility provision as inseverable, Medicaid j.A. 96-100,13 although the Anti-Injunction Act would pose an independent bar to that pre-enforcement challenge, see note 8, supra. Likewise, if the ¢ourt first holds the minimum coverage provision unconstitutional, state petitioners then would have standing to challenge the Act’s expansion of Medicaid eligibility as inseverable from the minimum coverage provision. See Medicaid j.A. 70-82. But the Court would not be required to reach or decide that issue here. Resolution of that severability issue concerning Medicaid is not necessary to afford relief to the individual petitioners who have standing to challenge the minimum coverage provision, because they do not claim to be adversely affected by the Medicaid eligibility provisions. And state petitioners cannot insist as a matter of right that the court resolve that severability issue as a remedy for them in this case, because the minimum coverage provision—even if unconstitutional as to individual petitioners—violates no rights of state petitioners that might in turn form a basis for affording them a remedy in this case. Accordingly, if the ¢ourt holds the minimum coverage provision unconstitutional, it could decline to resolve the Medicaid severability issue at this time or in this case as a matter of prudence and judicial restraint.
State petitioners have not asserted any basis for standing to seek invalidation of any of the Act’s other provisions. for example, although state petitioners urged in district court that they were burdened by the Act’s exchange provisions, the court rejected that challenge because state participation in the exchanges is voluntary. See pet. App. 452a. State petitioners did not appeal that ruling, and they do not argue that they are burdened by the provisions that give them the option to establish exchanges. Accordingly, the Court should not consider the severability of those provisions or any remaining provisions of the Act.
To this eloquence my reaction is HA!!! This radical Court could not give a flying frack about your appeals to judicial restraint. This is all meaningless blather. This radical conservative Roberts Court will do precisely what it wants to do, precedent, custom, constitutional avoidance, standing be damned.
The only real question is just how radical are these radicals willing to be? Judging from today, extremely radical. Pre-1937 radical. Will any part of ACA survive? I don't know. Ask the Roberts Court how they want to dictate to the country. They are a bunch of charlatans and hacks.
For those wishing to read more blather on this issue, here is the challengers' brief (PDF). I will not explore this point further, knowing how irrelevant it is to what our new radical conservative overlords will do. I for one do not welcome them.
Now we come to the question that is the ultimate test of the radical nature of this Roberts Court. To repeat the question presented:
Does Congress exceed its enumerated powers and violate basic principles of federalism when it coerces States into accepting onerous conditions that it could not impose directly by threatening to withhold all federal funding under the single largest grant-in-aid program, or does the limitation on Congress's spending power that this Court recognized in South Dakota v. Dole, 483 U.S. 203 (1987), no longer apply? (Normally I would note that this is a ridiculously argumentative presentation of the question. But I bet the Roberts Court sees it as a fair presentation)
First point to note is never has anyone ever seriously considered the type of challenge pressed here. This is indeed the most radical of considerations by this most radical of Courts.
What's at issue? Here is how the expansion of Medicaid by ACA is described by the federal government:
One of the principal means by which Congress addressed the crisis was by extending Medicaid eligibility to certain individuals under 65, not receiving Medicare, and with incomes up to 133$ of the federal poverty level. 42 u.S.¢. 1396a(a)(10)(A)(i)(FFIII).5 The persons made newly eligible for Medicaid are primarily low-income adults under age 65 who are not disabled and do not have children. See Congressional Budget Office, ¢BO’s 2011 Long-Term Budget Outlook 38 (June 2011) (Budget Outlook).
The Affordable Care Act does not require States to provide the traditional Medicaid benefit package to individuals covered by the eligibility expansion, instead applying the Medicaid Act’s “benchmark” or “benchmark equivalent” coverage provisions. 42 U.S.C. 1396a(k)(1); see 42 U.S.C. 1396u-7(b). under those provisions, States must provide coverage that includes defined health benefits and meets certain other requirements, but may choose options that may be less comprehensive than the traditional Medicaid benefit package. Ibid.
The federal government will bear nearly the entire cost of medical assistance for individuals made newly eligible by the Affordable Care Act. from 2014 through 2016, the federal government will pay 100$ of the costs of providing medical assistance associated with the extension of eligibility. 42 U.S.C. 1396d(y). That amount will gradually decrease, to 95% in 2017, 94% in 2018, and 93% in 2019. Ibid. In 2020 and thereafter, the federal government will pay 90% of these costs. Ibid. That level of support significantly exceeds the typical federal contribution rates, which range from 50% to 83% of a State’s Medicaid expenditures and which have generally averaged 57%. See 42 U.S.C. 1396d(b); 2010 Actuarial Report 20.
Yes, this part of ACA is designed to help the 99 percent (and the country as a whole of course) which will have the aggregate cost of health care reduced by the timely availability of health care for the most vulnerable in our society.
No doubt the radical Roberts Court views this as pernicious policy. "Let them eat cake!" But let's pretend the law matters for the time being.
In its brief on the constitutionality of Medicaid expansion (PDF), the federal government argues:
The Affordable Care Act’s expansion of the Medicaid program is a constitutional exercise of Congress’s Article I authority. Petitioners’ challenge to the Act’s Medicaid expansion lacks any support in this Court’s precedents, invites standardless decisionmaking and intractable problems of administration, and is wrong as a matter of constitutional principle.
1. It is well settled that Congress’s spending power includes the power to fix the terms on which it will disburse funds to the States. That power is subject to several general restrictions identified in South Dakota v. Dole, 483 u.S. 203 (1987), including the obligations to spend funds in pursuit of the general welfare, U.S. Const. Art. I, § 8, cl. 1, and to make conditions on spending clear and unambiguous. Apart from those restrictions, Congress has broad authority to attach conditions to federal spending in order to further federal policy objectives.[…]
2. Congress’s use of the spending power to extend Medicaid eligibility to a new category of low-income individuals does not violate structural principles of federalism by compelling States to implement a federal program.
a. petitioners’ assertion that the Affordable ¢are Act worked an unprecedented transformation of the Medicaid program rests on a series of mischaracterizations. From the outset, Congress specifically reserved the right “to alter, amend, or repeal any provision” of the Medicaid Act, 42 U.S.C. 1304, and Congress has many times exercised that reserved authority to extend the Medicaid program to new classes of beneficiaries and new kinds of benefits—and has often required States to accept the expansion as a condition of continued participation in the Medicaid program. In the Affordable ¢are Act, more than in prior Medicaid expansions, Congress took significant steps to reduce the burdens on the States by initially covering all of the costs of funding medical assistance for individuals made eligible by the expansion, and ultimately providing federal assistance at rates far exceeding usual Medicaid matching rates. The resulting additional cost to the States represents less than a 1% increase over their baseline spending and will be more than offset by cost reductions resulting from the Affordable Care Act.
Moreover, the Act preserves States’ flexibility to respond to budgetary demands by, inter alia, adjusting their spending on certain coverage that is optional, rather than mandatory, under the Medicaid Act.
b. This Court has recognized that, unlike a directive to the States to enact or implement a federal regulatory program, Congress’s decision to condition the receipt of federal funds on compliance with federal policy respects principles of federalism by leaving it to States to decide whether federal policy is “sufficiently contrary to local interests” to justify declining federal money. New York v. United States, 505 U.S. 144, 168 (1992). Petitioners do not dispute that they are free, as a matter of law, to turn down federal Medicaid funds if they view program conditions as sufficiently contrary to their interests. They contend, however, that the “sheer size” of federal Medicaid grants means they have no practical ability to turn the money down. On their theory of coercion, the greater the federal government’s willingness to contribute funds to defray the costs of covering needy individuals (including costs of optional coverage that States chose to add to their Medicaid programs), the less say Congress has in defining the features of its spending program.
No court has accepted such an argument, and for good reason. However attractive the offer of federal Medicaid funding may be, the decision whether to accept it always belongs to the States, and not the federal government. Petitioners’ claim of coercion is nothing more than an argument that the citizens of their States would hold them politically responsible for either the reduction in benefits that would result from opting out of Medicaid or for the increased taxation needed to fund those benefits entirely at the state level. That argument turns notions of political accountability and state sovereignty upside down, for it rests on the assumption that States lack the capacity or the will to accomplish on their own what their citizens desire, and therefore have a right under the Constitution to have courts dictate the terms on which the federal government provides assistance.
Look, this issue is an embarrassment—for the Court for taking the issue and for the persons forwarding it. Hell, for the country. States don't like Medicaid? Don't take it.
There are, one supposes, theoretical scenarios where a "coercion" argument with regard to federal funding provided to states might pass the laugh test. The government brief details these hypothetical issues:
Congress’s power to condition the grant of federal funds “is of course not unlimited, but is instead subject to several general restrictions.” South Dakota v. Dole, 483 u.S. 203, 207 (1987) (citation omitted). First, consistent with the text of the Spending Clause, “the exercise of the spending power must be in pursuit of ‘the general welfare.’ ” Ibid. Second, conditions under programs for grants to the States must be unambiguous, “enabl(ing) the States to exercise their choice knowingly, cognizant of the consequences of their participation.” Pennhurst, 451 U.S. at 17. Third, the Court has “suggested (without significant elaboration) that conditions on federal grants might be illegitimate if they are unrelated ‘to the federal interest in particular national projects or programs,’ ” Dole, 483 u.S. at 207 (citation omitted). Finally, the Court has “noted that other constitutional provisions may provide an independent bar to the conditional grant of federal funds,” id. at 208 (citations omitted), such that Congress may “not ‘induce’ the recipient ‘to engage in activities that would themselves be unconstitutional,’ ”United States v. American Library Ass’n Inc., 539 u.S. 194, 203 (2003) (plurality opinion) (quoting Dole, 483 U.S. at 210).
These restrictions ensure that the spending power does not “render academic the Constitution’s other grants and limits of federal authority.” New York, 505 U.S. at 167. Beyond these limitations, however, “Congress has wide latitude to attach conditions to the receipt of federal assistance in order to further its policy objectives.” American Library Ass’n, 539 U.S. at 203 (plurality opinion).
The Medicaid expansion in ACA is (1) in pursuit of the general welfare; (2) is unambiguous and allows states to make an informed choice as to whether to accept the federal funds; (3) clearly related to a legitimate federal interest and (4) does not impose unlawful conditions, such as a privacy right violation such as a drug testing requirement (too bad it does not prohibit them).
Let's be blunt. This challenge is an embarrassing joke. So why hear it? Two possibilities—that the radical Roberts Court is prepared to be even more radical than the most sanguine among us (yeah, me) could imagine, or, perhaps more likely, to demonstrate how "objective" they are, they stuck this one in so that they can rule against the challengers on something.
In any event, as someone who has perhaps the least respect for the Roberts Court of anyone you could possibly imagine, this entire exercise has left even me shocked.
I weep for our country.