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Balkinization Symposiums: A Continuing List 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 Rahman sabeel.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 Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Who’s Afraid of the Medicaid Expansion (and Why)?
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Monday, July 16, 2012
Who’s Afraid of the Medicaid Expansion (and Why)?
Joseph Fishkin Several Republican governors have now boldly asserted that they will turn down the money for the Medicaid expansion, embracing with gusto the option the Supreme Court gave them with its novel Spending Clause holding. Should this happen, these governors will make their states’ citizens appreciably poorer, as well as sicker. But they will have taken a bold stand for the cause. What cause exactly? Opponents of the individual mandate flew the flag of liberty: specifically, the liberty not to engage in an unwanted commercial transaction. This was a recognizable libertarian claim. Opponents of the Medicaid expansion cannot make any similar claim. No individual liberty is at stake here. (Nobody is forced to sign up for Medicaid.) If there is a great motivating cause here larger than opposing Obamacare—or Obama—then it is states’ rights. Certainly that is how Texas Governor Rick Perry understands what’s at stake. (But see below.) From a Spending Clause point of view, the Republican governors recklessly opposing the Medicaid expansion are in one limited sense doing us all a favor. They are providing a clear demonstration that this particular exercise of Congress’ spending power (after creative modification by the Court) is not an offer “that no State could refuse.” After all, multiple governors say they will refuse. This fact should be filed away for future briefs opposing the perhaps-inevitable future ratcheting down of the definition of coercive federal spending. Meanwhile, as a thought experiment, suppose the Court’s Spending Clause holding had gone the other way. I wonder how many of these same governors might have similarly flirted with opting out of the Medicaid expansion even if that had meant opting out of Medicaid entirely. I am certain that some would have. For support I point to Governor Perry, who in fact did flirt with opting out of Medicaid entirely, as recently as 2010. (He got the Heritage Foundation memo, which claimed, wildly implausibly, that “nearly every state would be better off” without Medicaid.) To be sure, the Court’s Spending Clause holding was important as a signal (in addition to its substance): it greatly raised the political profile of the opt-out option, spurring these governors to play the card they had so publicly been dealt. But in policy terms, the choice to opt out of the expansion today is such an obviously bad choice that I think it’s fair to say that any state that would seriously consider it probably would also have seriously considered dumping Medicaid full-stop, if that were the only card they had. (If a state or two does in fact refuse X, does that conclusively refute the claim that X was an offer “that no State could refuse”?) As a practical matter, there is still plenty of time and plenty of wiggle room for all these states to negotiate compromises with HHS and take the money—perhaps after obtaining face-saving waivers of some sort that could allow them to claim that they bravely faced down those inflexible federal bureaucrats. The biggest prize in this fight, by far, is Texas. Texas is set to receive the largest single chunk of federal spending under the Medicaid expansion: $52.5 billion in the period from 2014-2019, according to a relatively conservative estimate from the Kaiser Family Foundation [see the table on page 10 of the report*]. That is considerably more federal money than California will receive; it is more than six times what a state like New York will receive. That five-year figure, for perspective, is more than half the size of the State of Texas’ annual budget, or 4% of Texas’ annual GDP. It is just an enormous pile of money. I published an op-ed over the weekend in the Austin American-Statesman arguing that Texas needs to say "Yes" to the Medicaid expansion. The rest of this post makes that case in bullet-point format and then asks what it means that the arguments are this lopsided—and yet there still seems to be a live dispute about whether to participate. Cui bono? Briefly, here's the argument:
So what is going on here? How is it that we have a live dispute about a policy issue where the arguments are this embarrassingly lopsided? This is not one of those issues, like ethanol subsidies, where a narrow but powerful lobby is able to win despite the weakness of its arguments for the classic public-choice reason that a small, organized group with a lot to gain beats a disorganized general public with only a little to lose (per person). Here, if anything, the most powerful narrow interest—hospital systems—favors the Medicaid expansion. Instead, this seems to be one of those odd cases where ideology or partisanship, by itself, is giving Republican governors a sufficiently powerful reason to seriously consider overriding their states’ obvious economic interests. Here are three possible stories of what is going on here: (A) Anti-Obamacare / anti-Obama. This story is more partisanship than ideology. The idea is that Obamacare is so terrible that anything associated with it deserves maximum resistance. (B) States’ rights ideology. (As discussed above, libertarianism won’t get you there—it has to be states’ rights.) The popular resonance of an ideology of states’ rights today, long after the end of Reconstruction and the demise of Jim Crow, seems more limited than the popular resonance of, say, libertarianism. Outside of the Tea Party, how many Americans really believe that it matters a lot to make particular decisions at the state level rather than the federal level? Some, I guess. Governor Perry thought he could ride that horse all the way to the White House—and although that didn’t work out so well, his states’ rights theme was not his main problem. (C) This is the darkest possibility: opposition to universal coverage itself. Here, the idea is that covering lots of uninsured people is not merely something we don’t especially value—it’s something we actively don’t want, and are willing to pay not to have. Perhaps because of fears of what will happen if millions of people actually get care who need care (overcrowding, etc.) or perhaps because of deep revulsion at a possibly-irreversible change to the social contract in which access to medical care becomes an element of the social contract, on this view, the stand against the Medicaid expansion is ultimately a stand against universal coverage, full stop. The reason Perry had no answer to the friendly Fox interviewer asking him for any of his own ideas for covering the uninsured, is, on this dark view, that he actively doesn’t want them to have coverage. Perhaps they should have to work for it. (Even if they are in their eighties? See point 8 above…) I’m not honestly sure which of these is the right story (or which combination). To the degree that it is (A), things may die down a bit after the election. To the degree that it is (B), I guess it’ll keep sputtering along until the South stops rising again. But to the degree that it it is (C), if Obama is re-elected, perhaps at some point this objection will be laid to rest. Once we have made the switch to a policy regime in which it is more or less the case that people generally have medical coverage, or can obtain such coverage if they need it, that policy regime will shape the ideological space in which future debates like this one take place. And then someday, hopefully, Republicans can move on to denouncing Democrats for cutting Medicaid. It took a long time, but we got there with Medicare. That’s what progress looks like. *The print version of my op-ed states that the KFF figures are for 2014 when actually they’re for 2014-2019. I’m trying to get a correction appended to the story—a trickier proposition with print than it would be on a blog. Posted 12:59 AM by Joseph Fishkin [link]
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