an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Silver Linings for Today’s Losers in the PPACA Rulings
There are many excellent commentaries on the Supreme Court’s rulings today. Pam Karlan offers a great summary of the opinions:
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.
Here are some counterintuitive perspectives on those results, focusing on the “silver linings” for today’s losers:
1) Silver Linings for Mandate Opponents
Reviewing Roberts’ ruling, Gerard Magliocca has said, “The Chief Justice gave a pretty speech about federalism, but ultimately he did nothing about it.” Other commentators worry that the long term implications are more menacing for federal initiatives. Ezra Klein calls Roberts a “political genius:”
[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.”
On the other hand, games of chess may not come up very often in the future. Is a Democratic syzygy like that of 2008 likely to happen again in the next decade or so? If not, we’re unlikely to see another piece of social legislation with the scope and ambition of the ACA. As I mentioned to my health care finance class back in 2009-2010, legislative environments like that one were only around in the mid-1930s and mid-1960s (and perhaps evident in Nixon-era environmental lawmaking). Post-Citizens United, we may never see one again (barring constitution-level upheaval). But prediction need not be that portentous. As Tim Jost states:
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.
So the mandate’s opponents have achieved a new “gestalt,” but it’s unclear where the energy generated by such a shift will be directed.
2) Silver Linings for Medicaid Expanders
Andrew Koppelman is worried that red states will effectively cut off their nose to spite their face by turning down Medicaid expansion money:
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.
I’ve had a few reporters ask me about that possibility today, and the complementary worry that only insurance purchases at state exchanges (which are unlikely to be set up by red states) can be supported by premium tax credits. It’s possible that double-whammy will leave many of the uninsured just as badly off as they were before the ACA. But other commentators disagree about how red states will respond when the rubber hits the road. One of the leading national experts on health care federalism, Nicole Huberfeld, has said that she “would be surprised if many, if any, states opt out.” Tim Greaney offers these insights:
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?
Astonishingly enough, it appears that four justices are committed to exactly that cruel course. But for today at least, the “rhetoric of reaction” did not carry the day.