Anthony Kennedy, Election 2012, Federal Government, Health Care / Medicine, Paul Clement, Politics, SCOTUS, Supreme Court

Obamacare Goes to Court, Day Three: Republicans Come for Medicaid

Isn’t it funny that if you refuse to buy food, the government won’t force you to buy any — broccoli or otherwise? But when you show up at the hospital dying of starvation, the government will give you health care even if you haven’t paid for it.

Sorry, I know it’s foolish for me to inject 21st century policy concerns into Scalia’s 18th century hypothetical.

Obamacare supporters are still licking their wounds from getting smacked around by SCOTUS yesterday. I don’t know why anybody is surprised. You’ve got four staunchly conservative justices and one pretty conservative justice that gets called a “swing vote” because the Court has lurched so far to the right since he was appointed, and you’re going in front of them with a massive use of the interstate commerce power. You think they care that past precedents that they don’t agree with say they should uphold the law? You think they want to give Obama a victory any more than Republicans in Congress wanted to support the Republican approach to health care once Obama adopted it? This was always going to be an uphill battle with this Court.

That’s not Don Verrilli’s fault. People need to stop yelling at this man. No, he wasn’t as witty as Paul Clement. Do we really think that whether or not Anthony Kennedy wants us to have health care will turn on Verrilli’s ability to spit out a one-liner? If liberals want to blame somebody, it’s not Don Verrilli; blame the spineless way Congress and the President abandoned single-payer. That’s why we’re here folks. We sent Verrilli into a conservative lion’s den with a liberal piece of meat hanging around his neck, and now we’re criticizing the way he ran around, screaming for his life. That’s not right.

But anyway, that was yesterday and “reading the tea leaves” from oral arguments takes way more time than looking at the political agendas of each of the justices. Let’s move on to today’s arguments. The Court will consider whether the Affordable Care Act can survive if the Court strikes down the individual mandate part, and whether the expansion of Medicaid coverage amounts to government coercion….

I’m less concerned with the severability of the individual mandate issue. I mean, that’s the kind of thing that is going to make what could be a five-page decision (“The states should go and die in whatever way seems best to them.”) into a 105-page decision. Early reports from the just completed oral arguments suggest that a majority of the justices don’t think the law could be saved if the individual mandate is struck down.

But the Medicaid expansion is a bigger deal. I think Slate’s Simon Lazarus frames the issue nicely:

The Republican governors and attorneys general bringing the case against the health care law assert that the choice given states by the federal government—either accept coverage of approximately 16 million newly eligible beneficiaries or withdraw from Medicaid and lose all existing federal Medicaid funds—is “coercion.” Hence, they argue that with this provision, the federal government is unconstitutionally undermining state autonomy…

If accepted, this coercion theory could unravel existing federal authority and topple long-standing programs on a truly massive scale. Laws in the crosshairs would include: conditions on federal aid to education, such as No Child Left Behind (either the original George W. Bush or the modified Obama version); protections for persons with disabilities, like wheelchair access facilities on urban buses, subways, and sidewalks; myriad guarantees against racial, ethnic, gender, age, religious, and other forms of discrimination by state and local recipients of federal funds; guarantees of access to campus facilities for military recruiters, even anti-abortion restrictions.

Remember, most state’s rights activists really want to be able to take federal money without federal control. Many laws governors say are “imposed” upon them by the federal government could be dispensed with if those governors simply gave back the money.

But why would the governor of, say, Virginia, give back money collected from citizens all around country if there was a way he could keep the money and tell the rest of the country to go jump in a lake? That’s part of what today’s oral arguments are going to be about.

And the bitch of it is that most of the people who have been screaming about how Obamacare is an unconstitutional grab of federal power would scream even louder if their states were no longer “coerced” into supporting the federal programs they love and use.

Including some people on the Court. I bet they’ll be a lot less hostile to the government’s position today than they were yesterday.

Follow me on Twitter @ElieNYC or on @ATLblog and I’ll be giving you my impressions of the oral arguments once the audio drops on CSPAN.

The Temptations of the Court [Slate]

Earlier: Obamacare Goes to Court, Day Two: The Search for Anthony Kennedy’s Soul

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