Monday, July 02, 2012

The strange new limits on the spending power

Andrew Koppelman

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.

You can read the rest of this post on, here.

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