I never got around to summarizing the arguments from the fourth and last health care question at the Supreme Court, looking at whether or not the Medicaid expansion in the bill is unconstitutional. If the Court found this, it would unravel decades of federal-state partnerships in social policy and would create far more chaos than striking down just the mandate. Plus, more than half of the coverage expansion in Obamacare comes from this expansion of Medicaid, so it matters at a practical level as well. Adam Bonin writes that the Medicaid expansion, based on a read of the arguments, is probably safe. He highlights this comment from Justice Sotomayor:
JUSTICE SOTOMAYOR: I guess my greatest fear, Mr. Clement, with your argument is the following: The bigger the problem, the more resources it needs. We’re going to tie the hands of the Federal government in choosing how to structure a cooperative relationship with the States. We’re going to say to the Federal government, the bigger the problem, the less your powers are. Because once you give that much money, you can’t structure the program the way you want.
It’s our money, Federal government. We’re going to have to run the program ourself to protect all our interests. I don’t see where to draw that line. The uninsured are a problem for States only because they, too, politically, just like the Federal government, can’t let the poor die. And so to the extent they don’t want to do that, it’s because they feel accountable to their citizenry. And so if they want to do it their way, they have to spend the money to do it their way, if they don’t want to do it the Federal way.
So I — I just don’t understand the logic of saying States, you can’t — you don’t — you’re not entitled to our money, but once you start taking it, the more you take, the more power you have.
Justice Kennedy seemed to agree, though it was hard to get a read on the Court’s conservatives. The whole argument was kind of crazy from the get-go, the idea that expanding Medicaid is unconstitutional because the states are getting too good a deal to say no. “Why is a big gift from the federal government a matter of coercion,” asked Justice Elena Kagan.
But in many ways this was kind of a tacked-on argument immaterial to the case. Because if the Court finds that the Affordable Care Act’s individual mandate is not severable, then the entire law goes down, and the Medicaid expansion with it. Dahlia Lithwick argues that we could be headed down that road.
It’s not a good day for the Affordable Care Act. This morning’s argument requires the justices to start from the assumption that the court will strike down the individual mandate (the issue argued exhaustively yesterday) and asks them to pick over the carcass, to determine what, if anything, survives. There is a strong legal presumption that the court should save (or sever) the constitutional bits of a bill, even if it strikes down other parts. But as the day wears on and the argument winds down, this project of hacking and slicing seems more and more impossible—and it has depressed and terrified virtually everyone.
Justice Ruth Bader Ginsberg asks Paul Clement: “Why should we say it’s a choice between a wrecking operation, which is what you are requesting, or a salvage job. And the more conservative approach would be salvage rather than throwing out everything.” Scalia jokingly suggests that it would violate the constitutional ban on cruel and unusual punishment to force the justices “to go through these 2,700 pages.” And Justice Anthony Kennedy suggests that while the legal presumption is that judicial modesty requires the court to avoid redrafting an entire piece of legislation, maybe the truly humble thing would be for the justices to strike the whole thing down. “When you say judicial restraint,” he tells Deputy Solicitor General Edwin Kneedler, “you are echoing the earlier premise that it increases the judicial power if the judiciary strikes down other provisions of the act. I suggest to you it might be quite the opposite. We would be exercising the judicial power if one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended. By reason of this court, we would have a new regime that Congress did not provide for, did not consider. That, it seems to me, can be argued at least to be a more extreme exercise of judicial power than striking the whole.”
Look carefully at what Justice Kennedy just said: Don’t want to impose new risks on the insurance companies. Check. Striking down all of the 2,700 page statute—much of which regulates breastfeeding, Native American health, black lung treatment, and other things unrelated to the individual mandate—that’s the new judicial restraint.
Lithwick notes in particular how the Justices’ particular biases about health care mattered far more than the law during these arguments. Prior precedent played almost no role. It was “a kind of free-floating panel from Dancing With the Stars,” says Lithwick, with Justices turning up their noses at various laws they decided not to like.
Lyle Denniston, however, thinks that the mandate has a chance to pass muster with the Court. But it’s really hard to say. The Court was wise not to allow cameras in the room, because I don’t think these three days speak highly of the concepts of judicial restraint.
We should have a ruling by the end of June.