Constitutional arguments that were clear howlers a few days ago now have a chance at becoming the law of the land. - Law professor Andrew Koppelman
The oddest of the Obamacare-related questions before the Supreme Court involved the expansion of Medicaid, a program that’s been around for 47 years. Costs are shared between the federal government and the states, with the vast bulk of funds coming from Washington, D.C.
Under Obamacare, 16 million more people, all working poor, would be receiving Medicaid. The federal government would pay 100% of the costs for the first three years and 90% after that. As Koppelman notes, “Because the ACA also gives states assistance with their new administrative costs, overall state spending will actually be lowered.”
The Medicare expansion followed a long-established rule: If a government entity pays for a program, it gets to set the particulars.
Over time, Medicaid — and every federal program — have been modified with new legislation and regulations. These can tell the states taking education funds what they should include in sex education classes and states taking transportation funds what speed they should allow people to drive.
This rule is so established that not a single appeals court held it was unconstitutional for Obamacare to expand Medicaid. Normally this would mean that the Supreme Court had no case to consider.
But like what’s happened in the Senate, the Court cast aside “regular order,” taking this question for oral argument.
Truth be told, this was puzzling. On the one hand, it seemed far beyond the bounds of established law that the Court was even going to hear this case.
But it reminded me of something – Bush v. Gore. This decision stopped the counting of ballots in Florida in 2000 and gave George W. Bush the presidency.
In 2000, I didn’t think the Court would even take the case. After all, a majority of the judges had taken the view that states should decide state matters. Election law, except when it falls under voting rights law, doesn’t involve federal questions.
But not only did the Court hear it, it overturned what the Florida Supreme Court ruled. In ignoring precedent and the judges’ stated jurisprudential philosophies, the Court stated that its ruling only applied to this single circumstance.
Another activist chioce came more recently, when the Supreme Court, having heard oral arguments in the Citizens United case, asked for another set of arguments on some broader issues. It then threw out nearly one hundred years of campaign finance law. Now corporations free speech rights mean that they can spend whatever they want via SuperPACs.
For many years, conservatives have decried unaccountable, unelected judges, casting aside laws adopted by democratically elected legislators. Now, as E.J. Dionne writes:
Three days of Supreme Court arguments over the health-care law demonstrated for all to see that conservative justices are prepared to act as an alternative legislature, diving deeply into policy details as if they were members of the Senate Health, Education, Labor and Pensions Committee.
Senator, excuse me, Justice Samuel Alito quoted Congressional Budget Office figures on Tuesday to talk about the insurance costs of the young. On Wednesday, Chief Justice John Roberts sounded like the House whip in discussing whether parts of the law could stand if other parts fell. He noted that without various provisions, Congress “wouldn’t have been able to put together, cobble together, the votes to get it through.” Tell me again, was this a courtroom or a lobbyist’s office?
Challenges to the ACA litigation were initially seen as not-serious. Even as cases proceeded through the federal courts, the vast bulk of decisions were that there was nothing unconstitutional about it. District court judges turned down cases in place after place, but some were heard. And two of the three appeals courts that ruled on the manate found it constitutional, with decisions written by highly conservative judges, like Reagan appointee Silberman. Before oral arguments, 85% of experts polled by the American Bar Association thought all of it would be ruled constitutional, as did 65% of former Supreme Court law clerks.
If the Court rules against the Medicaid expansion, that would truly be surprising, odd and far-reaching. A decision against the mandate would (merely!) be a ruling against a new federal policy, a market-oriented approach originally developed by a conservative think tank. A decision against the Medicaid expansion would reshape the American landscape.
As Koppelman notes, the states’ challenge doesn’t stand on how they spend their own money.
Paul Clement, the attorney for the challenging states, declared that his argument would not change if the federal government permanently paid 100 percent of the costs.
More broadly, the states’ position
implies that, when states get federal money, they have a right to spend it any way they want, with no federal conditions. It means that Medicaid itself has always been unconstitutional, along with federal unemployment benefits, highway funds, education funds and many other programs.
Will the Supreme Court take that leap? We’ll have to wait and see.
In the meantime, it’s worth remembering that most periods of judicial activism in the U.S. have involved activism from the right. Myriad laws regulating working conditions were thrown out by the Supreme Court in the late 19th and 20th century. Whatever the rhetoric coming from politicians on the right, they will surely be pleased if this sort of judicial activism makes a comeback.
An addition: Former George W. Bush speechwriter David Frum makes a number of good points, including that, if there is judicial activism on Obamacare, “Congress will confront a new legal reality when it next confronts the healthcare problem, as it surely will: The way to pass constitutional muster is for the federal government to claim more power—to tax rather than to mandate, to spend itself rather than regulate how private insurers spend.”