Balkinization  

Thursday, June 28, 2012

It was always about the tax-- and the Medicaid

JB

Over at Slate, I have a longer discussion of the Health Care Case, including my guess about what the Medicaid holding means for the future. Here's a taste:


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Roberts' opinion on the tax-power issue is straightforward doctrinally. But he also got to create a five-person majority (with the four dissenters) sticking a knife in the back of the Commerce Clause argument. He got to play John Marshall in Marbury v. Madison, giving the Democrats a bottom-line political result they wanted while vindicating conservative arguments against the mandate in his opinion.

Subject to important qualifications noted below, this may turn out to be yet another exercise in symbolic federalism. If the argument about the Commerce Clause isn't dicta, it will have very little effect on what Congress does going forward, because Congress can now use the tax power instead of the commerce power. The specter of vegetables still haunts us. We may be safe from broccoli mandates, but we are not safe from broccoli taxes.

Second, Roberts opened up a brand new field for constitutional litigation about conditional federal spending programs like Medicaid. The decision says that when Congress threatens to withhold funding for program A unless states agree to program B, this can be coercive if the costs of exit from A and the reliance interest in A are too high.

In this case, Roberts argued that Old Medicaid, which protects mostly disabled and the elderly poor, is a different program than New Medicaid, which reaches everyone up to 133 percent of the poverty line. Congress cannot say to the states: "Participate in New Medicaid or we'll pull funding from Old Medicaid."

The logic of this argument depends on a court knowing that Old Medicaid is really different in kind and not merely in degree from New Medicaid. Why Congress isn't the best judge of whether the two programs are different in kind is a mystery to me. (It would also probably come as a surprise to Congress, which had changed the program's eligibility requirements before.)

It's that conclusion that will cause lots of work for lawyers going forward. (And it’s also great for authors of constitutional law textbooks like yours truly!) I will be interested to see if the same logic is used to challenge changes in conditional spending programs that conservatives favor. (Consider the Welfare Reform Act of 1996 as an example. Indeed, perhaps there are parts of the proposed Paul Ryan budget that might be vulnerable, although I haven't inspected it closely enough to tell.)

I'm also wondering what becomes of laws that threaten to withhold federal funding from all of a state's operations if the state refuses to acquiesce on a federal policy that only affects a small or distinct aspect of its operations. Is that akin to removing funding from program A because you won't play ball on program B? The Solomon Amendment, I seem to recall, withheld funding for state and private universities if their law schools did not admit military recruiters on an equal basis with other recruiters. Does the logic of this case apply to that? Does it apply to civil rights laws like Title VI and Title IX? To be sure, these cases seem distinguishable in several ways, and there is language in the various opinions that suggests that the principle will not be extended so far. Yet Chief Justice Roberts has opened the proverbial can of worms, and nobody knows where those worms will squiggle once they are loosed upon the world.

It's hard to predict what will flow from this opinion doctrinally. If President Obama manages to appoint a majority of liberal justices in his second term, most of the innovations in this case will be forgotten. The new spending clause doctrines will be confined, and the Commerce Clause language treated as dicta or made practically irrelevant. If Mitt Romney wins, on the other hand, he may be able to appoint a strong conservative majority to work with Chief Justice Roberts. Then, in hindsight, Roberts' seemingly compromised opinion won't be very compromised at all. His apparent flip-flop won't be understood as a change of mind. Instead, his opinion may turn out, in hindsight, to be the beginning of an important transformation in constitutional law. What will happen can't be deduced from the four corners of these documents. It will depend on the Supreme Court appointments of the next decade.

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