Monday, July 09, 2012

Breyer, Kagan, and the Medicaid Expansion

Mark Tushnet

Scott Lemieux has a good explanation of strategic reasons for Justices Breyer's and Kagan's decision to join the Chief Justice's discussion of the Medicaid expansion. I'd add that during oral argument it was clear that Justice Breyer was interested in exploring the possibility of some sort of limit on the cut-off of pre-existing Medicaid funds. The theory he was toying with, I think, was that as a matter of administrative law the Secretary of HHS's decision to cut off funds would be subject to "arbitrary and capricious" review, with the implication that at least sometimes a total cut-off for failure to expand Medicaid would be arbitrary and capricious. I'm not sure that that theory would have worked, but in any event the Chief Justice's alternative approach wasn't wildly inconsistent with the impulses that lay behind Justice Breyer's questions.

It's worth noting as well that, as a post on Daily Kos pointed out, the Affordable Care Act has a large number of provisions altering Medicaid, other than the expansion of coverage to those up to 133% of the poverty line. Under the Chief Justice's analysis, it remain open to the Secretary of HHS to take the position that some (many, all?) of those provisions are simply modifications within the existing Medicaid framework, not the substitution of a new program for the older one, and that states therefore must comply with them or risk a cutoff of existing Medicaid funds.

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