Balkinization  

Monday, October 07, 2013

Medicaid letter in the New York Times

Andrew Koppelman

This letter appeared yesterday in the New York Times:

 
To the Editor:
 
The Supreme Court deserves the blame for the atrocity you describe in which a huge number of the poorest Americans are deprived of the benefits of Obamacare. The court gave states the right to choose to participate in the old Medicaid program, which covered far fewer people, without joining the new one. This is nonsense: there’s only one Medicaid program, and Congress, which created it, logically has the right to set its terms. 

For the first time in history, the court decreed that states have the power to revise a federal spending program. This is the court at its worst: terrible legal reasoning leading to serious harm to millions of people. 

ANDREW KOPPELMAN
Chicago, Oct. 3, 2013
The writer is a professor of law at Northwestern University and the author of “The Tough Luck Constitution and the Assault on Health Care Reform.”
  
The letter responds to this story.

I'm thinking about writing something expanding on this point.  Comments are very welcome, so I'm opening a comment thread.

 

Comments:

I think you have a point, but the problem remains that the Federal Government is not in a position to force the states to participate in a program on the basis of its own mandate. This creates significant problems in the context of federalism and would tear at the fiber of State sovereignty, undoing the work of the formative members of Congress to decentralize governmental power. See, for example, the reasoning in South Dakota v. Dole, 483 U.S. 203 (1987). The US Supreme Court, in determining the Constitutional validity of the Affordable Care Act, is necessarily constrained by these principles. Realistically, the consequence of its impact on the poor is a political problem for states (namely Florida and Texas) that have refused to participate for political reasons. If public opinion supports an expansion of Medicade, which I hope it does, the leaders in these states will be influenced or replaced by the political process such that these State governments will take necessary action to assist their poor. The other potential consequence is an exodus of under-served populations to states who are expanding Medicade. Realistically, though, based on the current interpretation of the Constitution, the President is not in a position to require the States to act and the Supreme Court cannot similarly mandate the same action without otherwise destroying comity and federalism inherent in the formation of the US Constitution.
 

"force the states to participate"

They aren't. The "forcing" here is based on the cost to the state to not be involved in Medicaid, and the 'forcing' includes a major federal subsidy into the program.

Justice Ginsburg made a good case on this and even those who thought the individual responsibility requirement was unconstitutional thought this challenge was a longshot. The lines drawn by the controlling opinion here are also rather vague.


 

The Founders did not try to "decentralize" governmental power when they adopted the Constitution. To the contrary, the whole point of it was to *centralize* power more than had been true under the Articles.
 

Perhaps Sen. Lindsey Graham's (Cracker, SCar) complaint during the 2012 presidential campaign that there there aren't enough angry while male voters has triggered this Neo-Confederacy (except for Arkanas) reaction to Obamacare.
 

"To the contrary, the whole point of it was to *centralize* power more than had been true under the Articles."

But not to the extent we currently experience. That is to say, while they WERE setting out to increase the power of the central government, they weren't trying to produce a unitary state with the existing states as mere administrative districts.
 

That may or may not be true, but that's not the point to which I was responding.
 

"existing states as mere administrative districts"

Sounds like some Hamilton dream. Didn't happen yet.
 

Since the four dissenters failed to join CJ Roberts opinion on anything, including positions they argeed to and the four who joined him on the tax issue did not join his opinion on anything else, the decision on the extension of Medicaid is yet to be made. The Obama administration should sue the recalcitrant states and await a decision by the Court, not just one member, on that point.

That we can all count to five on what that result might be is irrelevant to what the Court did not do and that was have five decide that issue by a majority who agree to join together.
 

Roberts did indeed make a hash of all the Obamacare opinions.

There is nothing in the Constitution preventing the Congress from turning the states into federal government dependents and then using that dependence to coerce them into conforming to federal policy. The federal welfare state does this all the time with businesses and individuals.

Just because a government policy is abusive does not make it unconstitutional.
 

Our SALADISTA seems to be conceding that the "federal welfare state" [his description, not mine] is constitutional. And I'm thinking of getting a wall-hanging of our SALADISTA's:

"Just because a government policy is abusive does not make it unconstitutional."

nearby my Luddite desktop computer for reference in analyzing our SALADISTA's future comments. Query: how might our SALADISTA's constitutional adage be applied to Pres. Nixon with Watergate, Pres. Reagan with Iran-Contra, and Bush/Cheney with torture and their 2007-8 Great Recession? I wonder how originalists might react to this adage. And then there's the Obama Treasury Coin to address the debt ceiling if the House GOP Caucruz continues to run the Ship-of-State aground.
 

Shag:

The federal welfare state is a combination of the constitutional and unconstitutional, but using dependence on the constitutional portions to coerce compliance with federal policy does not violate the Constitution.
 

Brett and Mark:

Mark is right that the intention of the Constitution was to expand the federal government. Brett is right that the framers did not think they were limitlessly expanding it; they thought they were expanding it to extend to any problem national in scope.

But the problem with originalist Article I Section 8 arguments is that they ignore the vast expansion of interstate commerce that occurred since the adoption of the Constitution. It isn't the Constitution that got bigger; it's that the subject matter that was assigned to federal jurisdiction (commerce among the several states) got a lot bigger. Whereas in 1787, if you wanted to purchase a suit, it might have been a purely local transaction involving a local mill, a local clothier, and a local tailor, with the materials never leaving the state, nowadays that same suit might be ordered online on an interstate computer network, shipped over state or international lines, and tailored by an employee of an interstate corporation.

THAT's what expanded federal power. Saying that the framers didn't intend some specific transaction to be regulated is not really relevant.
 

If Brett has his way our economy will return to the levels of the 1700s. Problem solved.
 

Dilan, we're in agreement on this.
 

Our SALADISTA's revised constitutional adage:

The federal welfare state is a combination of the constitutional and unconstitutional, but using dependence on the constitutional portions to coerce compliance with federal policy does not violate the Constitution."

suggests that he is a fan of Joseph Heller of "Catch-22" fame. It's amazing that the constitutional can be combined with the unconstitutional and by using coercion can avoid violating the Constitution. Perhaps the Justice Department can rely upon our SALADISTA for Caesarist way out of the budget/debt ceiling trilemma.
 

Dilan said...Mark is right that the intention of the Constitution was to expand the federal government. Brett is right that the framers did not think they were limitlessly expanding it; they thought they were expanding it to extend to any problem national in scope.

The Constitution changed our government from a confederacy to a federal system with a limited national government.

The Founders intentionally did not create a federal police power to address any problem national in scope and I doubt that was the point Brett was making.

Instead, the Founders expressly limited the federal government to a list of enumerated powers and then to make their intent even more plain, expressly reserved all other powers to the states and the people in the Tenth Amendment.
 

I was rereading articles on the Medicaid decision and found this interesting article on NPR (http://www.npr.org/blogs/health/2012/06/29/155959343/high-court-health-care-ruling-shifts-action-to-states), in which the tenor of the article suggests that while yes, the Supreme Court made it technically and legally possible for states to decline to expand Medicaid, it would be politically unpopular for states to do so.

So people said things like "'I think almost no state in January 2014 wants to be in the position of having to explain to the rest of the country why its poorest citizens can't get any coverage." Even Paul Clement seemed to think the decision was more academic than earth-shaking:

"Paul Clement, who argued the case on behalf of the 26 states that fought the Medicaid expansion, says he thinks most states will end up going along with the Medicaid expansion. 'Since there's all that new money sitting there and it's all going to be paid for by federal tax dollars whether or not they accept it, it's going to be very hard for states to refuse the funds,' he told NPR's Nina Totenberg in an interview."

If this article is representative, it seems that almost everyone at the time thought there would be few practical effects of the decision. Scholars and veteran lawyers, and probably even Supreme Court justices, systematically underestimated the cruelty of Republican governors.

So my question is, would Breyer and Kagan have sided with Roberts, Alito, Scalia, and Kennedy if they could have accurately predicated how many states would deny Medicaid? I know this wouldn't have changed the outcome, but at least a less unified court would show how unprecedented, illogical, and backwards this decision was. (I have no idea if the absurdly unnecessary suffering of millions affects Kennedy.)










 

"Scholars and veteran lawyers, and probably even Supreme Court justices, systematically underestimated the cruelty of Republican governors."

Please.

Pre-Obamacare Medicaid has been expanding faster than the GDP and state tax revenues for a generation now and is squeezing out funding for education and infrastructure in state budgets.

The Obamacare expansion of the number of government dependents is projected to be about 20 million. Participating states will be responsible of all the administrative costs and then 10% of the payments for medical care. Given the prior congressional cost shifting to the states under this program, those costs are likely to be substantially higher.

Where precisely are the states, which cannot rampantly borrow or print money to pay their bills like the Obama administration, come up with this money?
 

The number of states refusing sure calls into question just how "coercive" the funding is.
 

"they thought they were expanding it to extend to any problem national in scope."

Nope. They were not writing the federal government a blank check to exercise authority over anything somebody decided was "national in scope". They wrote a specific check which they thought sufficient for such problems, and included an amendment process for extending that power if it proved insufficient.

This is a common technique for evading constitutional limitations on federal power: Take the specific terms of the Constitution, derive from them some principles at a very high level of generality, and then apply those principles instead of the specific terms you derived them from.

The Constitution authorizes a federal government to deal with national problems by exercising specific powers. Not a federal government which can do anything it thinks useful to deal with a national problem, however defined.
 

"This is a common technique for evading constitutional limitations on federal power: Take the specific terms of the Constitution, derive from them some principles at a very high level of generality, and then apply those principles instead of the specific terms you derived them from."

You've got this exactly backward. What the Convention did was start from general principles, at a high level of generality, and then derive specific terms in order to instantiate those general principles. And they explained this as part of the ratification process.
 

They were not writing the federal government a blank check to exercise authority over anything somebody decided was "national in scope".

I think this only gets Brett a short distance. I agree that after stating a certain end (as Prof. Balkin explains in his article "Commerce"), they set forth enumerated powers. Also, there are various other limits, like the Bill of Rights.

Fine. The general purpose helps us determine the scope of these enumerated powers & the scope as Dilan and Mark state changes as facts on the ground (commerce being interstate that once was purely local in nature etc.) change.

ACA, including the Medicaid provision, can as Ginsburg, in part citing history, explained is legitimate. There are limits in place. It still is constitutional.


 

But, Mark, the thing which must be remembered is that it is those specific terms that became law, not the general principles that motivated them.

You can, properly, reason, "These are the principles that motivated the powers you have, thus you should use the powers to THIS end, not THAT end."

You can't, properly, reason, "These are the principles that motivated the powers you have, thus you must have the powers needed to achieve these ends, regardless of what the actual text may say."

A good example of this is the interstate commerce clause, which gave Congress regulatory authority over commerce crossing certain boundaries. It is now interpreted to give Congress regulatory authority over anything which might, hypothetically or in aggregate, by commission or omission, effect commerce crossing those boundaries.

But that's not the power that was granted, per the text. The power granted was to regulate that commerce, not to regulate things that effect it.
 

Brett's chronic Wick-burn for which there is no balm surfaces once again, ad nauseam.

Query: Isn't it "affect" not "effect" on interstate commerce?

Brett might as well get two pointed-hair plugs to illustrate his comments that are so 18th century when slavery was in vogue under the Constitution without specific reference to that institution. [Caution: Obamacare might not pay for those plugs.]
 

Brett, there are three basic problems with your argument. First, it's a standard interpretive principle that the courts will look to the purpose of the law in order to interpret it. This has been true for hundreds of years.

Second, the point of the "affecting commerce" doctrine is to effectuate the N&P clause. If, in order to regulate commerce, Congress also needs to regulate something you might not consider commerce, but which indisputably "affects" commerce, the N&P clause allows Congress to do that.

Third, the "specific" grants of power you mention are worded quite generally and how we read them will change when the conditions on the ground change (as Dilan noted above wrt commerce).
 

I should have added this since you're an originalist: during the ratification process, the Federalists specifically explained the general purpose of the list of powers given to Congress. Thus, that purpose is included in the original understanding.
 

gave Congress regulatory authority over commerce crossing certain boundaries. It is now

In Gibbons v. Ogden (1825), written by a ratifier:

Commerce among the States cannot stop at the external boundary line of each State, but may be introduced into the interior.

It is not intended to say that these words comprehend that commerce which is completely internal, which is carried on between man and man in a State, or between different parts of the same State, and which does not extend to or affect other States.


So, things internal commerce is covered, including when it "affects" other states. Not any "hypothetical," but that isn't the actual rule now. There has to be some sort of reasonable connection.

To continue:

If it exists within the States, if a foreign voyage may commence or terminate at a port within a State, then the power of Congress may be exercised within a State.

The use of "may" however does suggest possibilities are covered. When the commerce as a whole travels among the states, internal acts can be regulated too. The national insurance market, e.g., is something interstate, even if specific actions are not.

Again, Mark Field's analysis also is appreciated, including the N/P point though as he might tell you Madison at one point suggested it was redundant, since a power includes reasonable related power necessary to put it in force.

The same is true really for rights, making Douglas' sentiment in Griswold v. Connecticut logical.
 

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