Silver Linings for Today’s Losers in the PPACA Rulings

Frank Pasquale

There were two issues—two big issues and then two minor issues—before the court . . . . The two big issues were: was the individual mandate constitutional, and was the expansion of Medicaid to cover a great deal many more people who are near the poverty line constitutional?

The two minor issues were: could the court hear the case at all at this point, and if there was any provision of the act that was unconstitutional, what happened to the rest of the act?

The bottom line was that the individual mandate is constitutional and the expansion of Medicaid to cover more people is constitutional, but—and this is an important but—states cannot have their existing Medicaid funds cut off if they decline to participate in the expansion of Medicaid to millions of additional people.

[T]he legal reasoning in his decision went far beyond the role of umpire. He made it a point to affirm the once-radical arguments that animated the conservative challenge to the legislation. But then he upheld it on a technicality. It’s as if an umpire tweaked the rules to favor his team in the future, but obscured the changes by calling a particular contest for the other side. ”John Roberts is playing at a different game than the rest of us,” wrote Red State’s Erick Erickson. “We’re on poker. He’s on chess.”

Chief Justice Roberts’ ruling on the Commerce Clause argument is clear and decisive and entirely adopts the argument of the states and of legal scholars who have opposed the ACA. It lays down a principle that Congress cannot compel Americans to engage in commerce against their will. Millions of Americans will go to bed tonight safe in the knowledge that Congress will never make them eat broccoli. But it is hard to think of any other examples where Congress would ever assert its Commerce clause authority to require the purchase of a private product. This is really a unique situation.

From 2014 to 2016, the federal government will pay 100 percent of the costs. Then its share decreases, to 90 percent after 2020. Because the ACA also gives states assistance with their new administrative costs, overall state spending will actually be lowered. In the litigation, however, 26 states claimed – and Roberts agreed — that this conditional spending unconstitutionally coerced them. But let’s be clear: This is not about the states wanting to conserve their own money. It is about the states refusing to spend federal money, to help people that they do not want to help. (Paul Clement, the attorney for the challenging states, declared in oral argument that his position would not change if the federal government permanently paid 100 percent of the costs.)

It is likely that many of these 26 states . . . will now accept Roberts’ invitation to refuse the additional Medicaid funds. The people in those states who do all the menial jobs on which everyone else depends won’t get the medical care they need after all, because the temptation to trash Obamacare will be irresistible.

Should those states calling most loudly for repeal/overrule of the ACA now be true to their convictions and walk away from Medicaid expansion? To do so would be a remarkable triumph of ideology over their constituents’ public interest and economic interest. They would be abandoning a large segment of their most needy citizens AND leaving a lot of money on the table . . . All in all its a nice way of putting the ball in the court of the critics and framing the issue pretty starkly: do you want to participate in the shared national responsibility to take care of the less fortunate or is your State willing to leave a sizable segment of its citizens exposed to the dire consequences of being uninsured?