E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.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
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
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 yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The
Supreme Court struck down the provision in the Affordable Care Act that
required states to accept expansion of Medicaid coverage – presently available
to unemployed parents who make, on average, less than 37 percent of the federal
poverty level; henceforth to be raised to 133% of the poverty level - or lose
all their Medicaid funds.Now Republican
governors are deciding whether
to accept the new Medicaid funding.Republican Representatives are already urging their home-state governors
to turn down the money.
Rep. Phil Gingrey
of Georgia, asked what the 500,000 people in his state who would thus be
deprived of insurance are supposed to do, simply said that
those at that income level have “got a little bit more money in their pocket
than those who are at 100 percent of the federal poverty level.” A great
comfort if they get cancer.(Gingrey
actually misstates the preexisting rules in
Georgia, where working parents are eligible only if their incomes do not exceed
50% of the poverty level (or about $9,500 for a family of three), while adults
without dependent children are not eligible at any income level.)
I will here focus on the reasoning by which Chief Justice Roberts, and by a
different
path Scalia, Kennedy, Thomas, and Alito, reached this result.Roberts would have federal courts decide,
through some unspecified process, when a modification of an old program
transforms it into a new one, such that the Constitution forbids Congress from
presenting the two as a take-it-or-leave-it package.The Scalia group suggested that a federal
program becomes unconstitutional just by being big. These are extraordinary,
nonsensical new rules, that only make sense in light of a background assumption
that government must be restrained by any means necessary. And that in turn depends on a strange
conception of the liberty that the Court is trying to protect.