Friday, April 06, 2012

Medicaid, plea bargaining, "coercion" and "compulsion"

Sandy Levinson

I am very disturbed by Mitch's argument, for the simple reason that I think it may have a great deal of merit. I continue to belief that the attack on the so-called mandate is frivolous and that it would be truly shocking if the Court invalidated it. To put it mildly, nothing in the oral argument changed my view about the frivolousness of the argument, though it did reinforce my feeling that the intelligence of several members of the Supreme Court may be distinctly overrated. Similarly, when reading the Clement brief and reading the oral argument, I was vexed in the extreme by what seemed to be a posture of basic table-pounding about the coercion/compulsion being visited on the poor helpless states that had no choice but to accept the offer. He presented nothing in the way of an administerable test inasmuch as his argument boiled down to some version of "you recognize unacceptable compulsion when you see it and this is it. You don't have to articulate an administerable standard any more than you did in Bush v. Gore. It's perfectly proper to write a decision good for this legislation only." Ugh!

But the importance of Mitch's analysis is that he offers a concept of coercion that makes the felt psychological pressure to accept near, if not totally, irrelevant, in favor of focusing on the "legal merits" of the offer. And this means that one has to address seriously the possibility that there are problems with the Medicaid funding provisions even though Clement did not adequately spell them out.

So imagine that we're discussing plea bargaining: A) The prosecutor says "if you don't plead guilty, we're going to manufacture evidence of your guilt and find a jailhouse snitch who will testify that you did it." Obviously, this is unconstitutional. Nothing more need be said. B) The prosecutor says, "We have solid evidence that you did X, and in fact the state would be altogether satisfied if you spent the number of years in jail congruent with X, but we're prepared to charge you with X+Y, even though the evidence is admittedly weaker that you did Y, but the advantage is that you, the defendant, now have to take into account the possibility that after trial you will in fact be convicted of X+Y and sentenced to a considerably longer term (possibly death), since, after all, you have a previous record (and therefore probably can't take the stand in your own defense) and we don't have to remind you that you're a member of a racial or ethnic minority likely to face an all white/Anglo jury that, as in Texas, has remarkable discretion with regard to sentencing people they don't like.".

I take it that many--I would hope most--of us find B to be at least problematic and, one hopes, unconstitutional as well, because it is far closer to A, in terms of the bad faith of the prosecutor, than to another possiblity, C: There the prosecutor says "We have solid evidence that you did X and we think you merit Y years in jail for that, but we're willing to cut you a deal: Plead guilty and save us the cost of a trial and we'll agree to tell the judge (who always accepts our pleas) that you should be sentenced to Y-Z (where Z is in effect your reward for pleading out)." Some, though I suspect not most--of us are troubled by even Category C plea bargaining, but I assume that the numbers go up as we move to B and, I would hope, include ewveryone when we get to A. (There's no doubt, as a matter of current doctrine, that C raises no problems; the real shame is that even B probably raises no problems for the current Supreme Court majority when it considers the mechanics of plea bargaining.)

So, as I understand Mitch's argument, he's asking us to consider the possibility that the Medicaid provision is an example of B (most definitely not A), where the US cannot offer a good faith argument that cutting off all funds is predicated on much (if anything) else than a desire to elicit the waiver of the state's right to say no that is similar to the defendant's waiver of his/her right to say no and demand a jury trial. It's the equivalent of saying "that's a nice puppy you've got there; it would be a shame if anything happened to it.")

As everyone who teaches in the area knows, the area of "unconstitutional conditions" rivals only "state action" in its quicksand-like quality. Many leading figures have written on it--Richard Epstein, Kathleen Sullivan, Seth Kreimer, and Mitch Berman, for starters--and I think it's fair to say that none has carried the day. Some, like Cass Sunstein, have suggested we give up on the concept, and I can certainly understand the temptation. But then all you have is one damned case after another, which cannot be brought together into any coherent doctrinal relationship. At that point, I put on my political scientist hat and simply tell the student that the outcome is the result of the particular politics and identity of that day's majority (or, what may be the same thing, the idiosyncratic, often truly inexplicable, musings of the "median" justice who can break the ties between two adamant 4-4 blocs that may in fact possess more coherent theories even as, of course, they are in deep opposition to one another).

From my perspective, the central problem with Mitch's argument, which I find truly elegant, involves its administrability inasmuch as it inevitably requires that one in effect read the decision-maker's collective mind to determine the good faith of the arguments made that, e.g., all elements of the program are sufficiently integrated with one another to make cutting off all funds legitimate. There is certainly no reason to believe that members of the federal judiciary will have the kind of expertise to understand how complex programs "really" work. So perhaps it's better to rely on "political safeguards" to respond to programs--"Repeal Obamacare"--than the moreo or less arbitrary decisionsn of judges trapped in what Justice Breyer, in oral argument, called the "isolation chamber."

In plea bargaining, as Mitch analyzes it, one has to determine whether the state "really" legitimately believes both that the defendant did X+Y and deserves to serve 30 years rather than 10 years. The same problems emerge, of course, with regard to discerning "racial animus" behind a given policy or determining whether a state regulation touching on interstate commerce is motivated by a desire to help local business (illegitimate) or to protect the general health, safety, and welfare of the state's citizenry (perfectly acceptable).


Can Bush v. Gore be cited for the proposition that it can't be cited for a proposition, or that another case can be limited the same way?

Does the coercion Mitch Berman describes give rise to the liberty to freeload?

The post this responds to spends a lot of words to reach a result I still don't agree with.

States once upon a time were the primary security for what now is a group effort. The people in said states, the whole point here is to protect their rights not "states" rights (but a means even if "states" have "rights" -- Mark Field can comment), as a whole don't want to go back to the "good old days." So, the states are "coerced" to take the bitter with the sweet, partially since the overall program is one again (get your hands off my Medicare!) the people like, even if they doubt "they" (you know, the poor or some other "other") are not robbing them somehow.

Somehow, this is supposed to be constitutional "coercion." I don't see it. The newbie lawyer who doesn't want to represent tobacco companies (or gays) might feel "coerced" too since they don't want to give up the nice salary. But, this isn't "The Firm" territory here. They CAN quit. They simply don't want to do so.

To make things easier, the states in question have representation in Congress. The same people who voted in state legislators and governors voted for these people. Even with the 17A, the Senate is skewered to protect states and this law was pass with a supermajority.

I admit to maybe missing some nuances of the other post's 25 point argument which apparently by its own admission got rather little traction and even one of the few people who read it isn't quite convinced by it as applied.

Still, no sale. As to the first part of his post, don't worry. We all have limited time on our hands. It is not a problem you did not spend more time to deal with a weak argument. Surely, enough of your colleagues in academia did.

Another thing is line-drawing question cited by SL makes this a weak case by itself.

The actual "burden" here is very questionable as a whole, particularly with the feds taking up so much slack. Since it is a national problem, and I invite people to check out Edwards v. CA there, it seems reasonable that a national legislature determine the exact contours if there is any reasonable dispute there.

There is. "Reasonable" means that a case can be made against it. This is normal. The system put in place submitted this to the legislative process. Anti-federalism yet again lives.

I am reminded of the NFL player who, upon ending a lengthy holdout to sign a lucrative contract, announced, "They held an economic knife to my throat."

Berman's proposal would effectively force the federal government to implement "a la carte grants" where the states would be allowed to pick and choose which types of Medicaid services they want to offer (and receive federal funds towards) and which they don't. I don't find it constitutionally obnoxious for the federal government to treat Medicaid as a unitary program, though, because the individual parts all involve the same subject matter. It's not as though the states lose their highway funding if they don't want to pay for Medicaid. And it's hard to identify the constitutional principle that says every federal program must be cut down to bite-sized chunks or else it's too coercive.

The real reason states feel "compelled" to participate in Medicaid is that it's a lot of money and voters would be angry if the state said no. That's not really compulsion, though, that's democratic accountability.

The Federal-State Medicaid working relationship is one that a State can terminate at will (by withdrawing from the program) and that the Federal Government has reserved the right to change via statute (42 U.S.C. sec. 1304, which dates back to 1935). If a state doesn't like the proposed federal change, it can withdraw from the program.

An analogy that occurs to me, although I don't think it appears in any of the ACA briefing, is what happens when a landlord tries to raise a tenant's rent. The landlord prepares a notice that contains its proposal and gives the tenant the option of accepting the proposal or bringing the landlord-tenant relationship to an end. That is not necessarily a 'bad' or 'coercive' demand on the landlord's part, and that is true because the tenant has no right, absent a lease to the contrary, to continue forever on the current terms of the tenancy. There are bad reasons why a landlord might act -- for example, retaliating against the tenant -- and those reasons have been set out as defenses against eviction actions in the Uniform Residential Landlord-Tenant Act.

At least this is a better analogy than "your money or your life," isn't it?

"Berman's proposal would effectively force the federal government to implement "a la carte grants""

Alternatively, the federal government could stop issuing grants altogether, stop levying the taxes to pay for them, and if the states happened to want to do the things the grants currently pay for, they could raise the money themselves. Which would subject the spending to normal, local political forces.

Yes, correct, you could just end Medicaid as a national program. Do you have any argument that the Constitution commands that result?

"Which would subject the spending to normal, local political forces."

First, the Constitution was written with the idea that certain things should be at least in part be subject to "normal, national political forces."

Such as the "general welfare" in respect to the health of a highly mobile population whose health costs are handled by a national industry with costs with various national effects, including when bankruptcy is involved. This is also how modern Western countries tend to see things, from at least Germany in the late 19th Century.

Second, "normal, local political forces" can also determine that states reject the grants. That is, the people can use their votes to vote in state officials who do that. The people don't want to.

They want it both ways, really, so they vote in people who bring this litigation, but in other ways act in such ways that show they don't truly want purely local spending.

"First, the Constitution was written with the idea that certain things should be at least in part be subject to "normal, national political forces.""

And that such things should actually be done by the federal government. While the states would directly handle everything else.

Let's be blunt about this: The grants system is designed to let the federal government get involved in matters of local concern, while insulating them from local politics. It's not consistent with the design of our federalist system, it's a means of circumventing it.

When " ... matters of local concern ... " are not handled by the states and impact other states, Brett suggests the central government should ignore this. Perhaps when there were only 13 states with a total population of a "generous" 4 million that included slaves, Brett's outlook looking back (as he continually does) might have worked, but with the industrial and other commercial revolutions and a current population exceeding 300 million in 50 states, matters are a tad different regarding " ... matters of local concern ... " that some locals are loco about.

Brett's hissy fit about grants reminds me of the cartoon ad featuring a sitting man asking his standing wife: "While you're up dear, would you get me a Grant's?" This was back in the days when Grant's 8 was my Scotch of choice; I don't see it at the bars I go to now. As a former commenter at this Blog [whom I miss] used to say: "Cheers."

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Brett, I showed how this is a national concern and how local politics have power to affect it but have shown no will to revoke the understanding in place since Shag was a babe.

This is not an "amendment" of the Constitution, since as with changing race relations etc., and this is the genius of the document, it provides the flexibility to deal with changing times w/i the system in place.

The grant system, cooperative federalism, provides much local flexibility, while promoting (as I showed) national ends. As Breyer noted in his dissent in Printz v. U.S., at times, the other side seems to allow for less there.

As quoted in Edwards v. California seventy years ago:

"The Constitution was framed under the dominion of a political philosophy less parochial in range. It was framed upon the theory that the peoples of the several States must sink or swim together, and that, in the long run, prosperity and salvation are in union, and not division."

The national economy as well as the national health care is a key aspect of this. By use of the tools found in Art. I (which someone told me I should take as written not per desired policies), this is being done.

If the people don't like them, they can vote for other people.

Shag can always check out here:

I became an activist from the time of my birth in 1930 when Hoover didn't give a "damn," helping to bring about "Happy Days Are Here Again" by campaigning in diapers - or perhaps Hoover's short-comings toilet trained me - for FDR in 1932. So I did help

" ... revoke the understanding in place [when I] was a babe"

and replacing it with the New Deal. Brett seems to be fighting for the Raw Deal of Hoover and his predecessors during the Flapper days of the Roaring Twenties. Did we really need a Pure Food Law?

I have the opposite problem from Brett. I think the proble here is involving the states at all. States aren't worth crap. The health care problem is a national problem. The reason Medicaid gets routed through the states to begin with is to allow states to be stingy and make it a lousy health care problem. We don't route Social Security through the states and let them lower benefit levels.

As a legal matter, leaving aside stare decisis, I'd have no objection to a flat rule that the federal government can't fund state programs at all. The very availability of this option leads to lousy programs.

The "flat rule" Dilan puts forth is rather extreme and "lousy programs" will be in place either way.

Like the PPACA, which Dilan thinks firmly constitutional but a bad law in certain respects, the current situation is a compromise because of long held realities that imperfect compromises -- like the Constitution itself -- is the best we can hope for in the current real world.

The easiest solution to Brett's "problem" is the one proposed by Hamilton: abolish the states.

I think the states would probably rather abolish the federal government. Given Article V, seems far more likely.

Brett wants to take America back to the Articles of Confederation. How was that working back then?

No, I'd rather just take us back to the Constitution which supplanted it.

But, as a procedural matter, unless the opening move in accomplishing it is burning a copy of the Constitution and telling everybody to refer to it at their peril, I don't see how the states, which have to ratify any amendment, could be abolished by the federal government. While the states are, again as a procedural matter, permitted to amend the Constitution, even to the point of repeal, without Congressional consent.

Just another "Dump this damned constitution" fantasy from a left who despise the fact that the public holds in high regard a document they despise.

Brett, the Constitution gives the federal government plenary authority to raise revenue and spend money. There is nothing stopping the federal government from funding Medicaid entirely on its own (through taxation), like it does with Social Security.

Any limitation on state grants just leads to a bigger federal government, and a diminished state role. Just look at the latest Medicaid expansion -- the entire expansion was funded 100% for three years, and 91% after that. If there are limits on conditioning state funds, they'll just create a new program that covers the expansion, and fund it entirely themselves.

As much as you might hate that, there is nothing in the Constitution that prohibits it. If the mandate is struck down, that will inevitably be the direction we are headed. (Conservatives who substitute an understanding of healthcare economics with general anti-government religion will deny this, and keep denying it right up until the moment it happens.) Unless the federal government gets out of the business of providing healthcare (good luck with that), without the mandate, whatever we have now will eventually evolve into a single payer system. It might take some time, but it isn't avoidable (if the mandate is struck down). This isn't ideology -- it's just math.

I'm really amazed at how shortsighted many conservatives are. All Democrats have to do now is gradually raise the Medicaid eligibility threshold, and lower the Medicare eligibility age. Both can be done through budget reconciliation (avoiding the filibuster), both are extremely simple bills, and both will be done every time Democrats are in power.

Conservatives are taking what could have been a mostly private system (like Switzerland), and turning our healthcare system into Canada's. And they don't even realize it. The only thing they are gaining is perhaps 5-10 years.

The states of course are not monolithic. Nor are "We the People." Does Brett even speak for his own state, or just his "gaited" community? How many states are prepared to opt out of the central government? How many states can survive, be self-sufficient on its own? How many of those claiming to be libertarians can really, really survive with purely libertarian principles? Brett and his ilk have been claiming that the Constitution has been smoldering from just about day one as if everyone but them over the past 200+ years has been out of step as they march backwards. Perhaps Brett can explain to us how the industrial and other commercial revolutions could have been accomplished without the central government.

Happy Easter and Happy Passover to celebrants.

How many states are prepared to be abolished? I'd venture a guess that it's fewer than are prepared to do without the federal government, or more specifically, without this federal government.

Seriously, how do you see the mechanics of the federal government abolishing the states, given the terms of article V?

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The states aren't going to be abolished. They are just going to become less and less relevant. If the courts are going to make up nonsensical arguments and ignore their own recent precedent, so they can throw out X regulation or Y condition on state funds, the remaining course is the one that always existed. Use the plenary spending power to the fullest extent, and not involve states at all.

Even when that happens, states will still do quite a bit. They still have the police power. But they will be involved less and less in decisions regarding the national economy. Because the Supreme Court, in a misguided attempt at throwing out the most market-oriented system that could possibly exist in 10 years, will have unintentionally sent Congress the message that "big government" (top-down federal control) is the only thing that's left.

Conservatives think Obamacare is "big government." Wait until they see what "big government" actually is.

I have not suggested abolishing the states. In my view, states serve a valuable purpose (Justice Brandeis and experiments; Gov. Mitt R-MONEY'$ MA RomneyCare), as do "We the People." But without a central government that can serve the interests of all in America, some few states just might fall into the hands of a few yahoos and try to serve as the tail wagging the dog.

So if Brett was responding to me, his attempt to create a straw horse on state abolishment is not one to be mounted by me. Brett comes through as one of the few yahoos with a lasso seeking ghost riders.

If the states were to be abolished, it wouldn't be the federal government which abolishes them. It would be the sovereign people.

But more likely the states will be like old soldiers and just fade away.

Shag cited the Articles of Confederation. Who reads it? Taney apparently didn't know about the privileges and immunities provision in it, after all. It also, if narrowly, delegated certain things to a "federal government" so if that is the problem, we need to go back before that to c. 1780.

"No, I'd rather just take us back to the Constitution which supplanted it."

You can pound the table and sneer about people making stuff as much as you want, but bottom line you come off with policy arguments, such as small legislation is best.

The Constitution allows the PPACA and Medicaid programs, either the way Dilan wants them or as in place now. The guest commentator can no comment with long posts that make me seem brief and this doesn't change the bottom line.

This doesn't do away with states either, even if some here might want that to be the case.

Replying to Mitch's latest post, he seems to be saying that if providing option 2 (ACA Medicaid) does not depend on cutting off option 1 (current Medicaid), then coercion exists. But ACA is dependent on cutting off option 1. It is a complete restructuring of the health care market. After ACA, there will be no spot market for services covered by ACA (except for non-citizens).

Universal coverage means that everyone will have one of the standardized plans, whether purchased by the government for its employees, by private employers and state and local governments, by individuals through HIEs, or through Medicaid. Where states are not willing to provide the service levels to the populations that ACA requires, they cannot fulfill the purposes of ACA and former Medicaid patients in those states will purchase insurance from HIEs with federal subsidies. Likewise, in those states not willing to set up HIEs, the federal government will set up HIEs.

ACA could have set up a single-payer, tax-supported market; it chose not to, instead relying on private insurance or self-insured plans, and allowed the states to participate as non-profit, low administrative cost alternatives to the private system. But the train no longer stops at Medicaid station.

The problem with Professor Berman's analysis, I think, is that it assumes its conclusion. Berman writes that it is unconstitutionally coercive to make an offer that has no “legitimate public-serving” rationale, and is made only to get the other party to give up a constitutional right. And since the Medicaid provision in the ACA does just that, Berman writes that it must therefore be unconstitutional. But where does he get premise 1 from?

Nollan does indeed seem to formulate Professor Berman’s test (i.e. premise 1). But Nolan is not the last word. What about our plea bargaining rules? Can a prosecutor refuse to offer criminal Tim a plea bargain on crime 1 unless Tim also takes the plea bargain on unrelated crime 2 even if there is no "legitimate public-serving rational" for the prosecutor’s ultimatum? I think the answer to this is yes. And perhaps it is "yes" only because, as Professor Bermans writes, the Court has decided for pragmatic reasons to "underenforce a constitutional norm." But how can he know this? (The Supreme Ct., after all, never said so.) Maybe the answer is “yes” because when it comes to plea bargaining, the test for what is unconstitutionally coercive is not what Professor Berman says it is.

In other words (and to cut to the chase), the test for what is unconstitutionally coercive may not always be what the Nolan Court decided, but may instead depend on the particular fact situation (example: for plea bargaining, coercion of the type Berman describes is constitutionally okay, but for property easements it is not). If this is right (meaning if the proper coercion test depends on the particular fact situation) then the real question in the ACA case is not whether the medicaid provision is coercive in Professor Berman’s sense of the word (I agree that it is) but whether this is even the test. And this can’t be decided by mere arm chair philosophizing, but can only be seriously analyzed by poring through the case law.

(And of course Dole, the starting point for this analysis, gives us no help, since it only said that a spending condition can theoretically be unconsitutionally coercive without stipulating what “unconstituionally coercive” actually means – whether it means what it meant to the ct. in Nolan/Prof. Berman or whether it means something closer to what it seems to mean in plea bargaining situations .

"Berman writes that it is unconstitutionally coercive to make an offer that has no “legitimate public-serving” rationale,"

Thought it was the threat that has no legitimate public serving rationale, not the offer. That is to say, the offer of the funds may further a public interest, but, if the funds would further that purpose even if the state didn't comply with the condition, (And they generally would.) the threat to deny them if the state does something it's entitled to do furthers only the illegitimate purpose of commandeering the state.

I happen to think the real coercion here lies at the taxation end of things: The federal government levies enough taxes to fund the grants, that any state that refuses them, and attempts to levy it's own taxes on top of the federal taxes to finance it's own activities will destroy it's economy through excessive taxation.

Taxing 50 states, and then sending the money to 49 of them, does not meet the requirement that taxation must further the "general" welfare. Once you specifically cut one state out of benefiting for a program, you've run afoul of that clause.

Brett, your analysis can't be right. There doesn't have to be any link between taxation and spending.

In other words, nothing stops the federal government from raising taxes on everyone, even if there is no benefit program. (It can raise taxes simply to lower the deficit, or for any other reason. The power to tax is plenary.) Then, later, the federal government can set up a benefit program as a grant to states (if they accept it).

The money for that program is simply coming from the giant pot called the federal treasury. There is not an arrow from one specific tax to "fund" that program -- it is just a program, using money already in the pot. Since it is meaningless to state that X tax is being used to "fund" Y program, there is no possible way any valid legal argument could go after the X tax.

The only way to solve your program is to not have a federal government with the power to tax. But of course, the Constitution sets up exactly that.

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If the state decides to not take part in this program, the penalty is not that they will get no funds for any federal program.

Also, for reasons I noted before, the program provides for the "general welfare" and if a state hinders it, yes, it is reasonable that it "pay" for the burden it puts on everyone else to do so.

Next, given the breadth of the national concern here, even if the 50th state doesn't get funds, they are benefited. The affects of national health care etc. isn't suddenly going to stop at their borders. If a nearby state, e.g., has an outbreak and Medicaid helps to ensure a segment gets treatment and don't travel to the state and infect its residents, "general welfare" is furthered.

Finally, what Jon said.

Precisely where in the Constitution does it bar the Congress from placing preconditions on federal spending - regardless of how politically coercive they may be to the recipient states?

Just because the states do not have the political will to say no to the federal money does not create a constitutional crisis for the Congress.

Because Medicaid is crowding out state spending for education and infrastructure, sooner or later a state or coalition of states is simply going to say that they will spend X amount of money on Y services and no more, daring Congress to cut off the federal money.

Unless, of course, Ryan enacts his plan to block grant Medicaid to the states with most strings removed. That would make too much sense, though.

The Founders had no problem forcing people to buy health insurance...

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