So here it is. This term the Supreme Court will decide the fate of the Affordable Care Act, a fact that given the fight for passage and then fight in the courts, is not that surprising.
So far the bulk of the focus has revolved around the individual mandate, perhaps the least popular provision of the reform by both the left and the right. But as I parsed out the grant of review it was not the review of the mandate that gave me any concern, it was the grant of review of the Medicaid expansion.
It’s not as sexy as the individual mandate but it is arguably more important. And it could be on the ropes.
The Affordable Care Act guarantees that all people who earn below 133 percent of the poverty rate can receive Medicaid and promises the states that the federal government will pick up 90 percent of the new costs associated with expanding access.
Conservatives have challenged this expansion on the ground that it unconstitutionally “coerces” state governments to participate in the program. Now, let’s just get this out of the way: the states already participate in Medicaid. So the argument put forward by the conservative attorneys general is simply that the deal is too good to pass up.
The reason this review worries me is that not a single lower court who has considered this argument has bought it. Even worse, not a single federal court has ever upheld a state government’s argument that it was being “unconstitutionally coerced” into accepting federal funds with conditions.
Now, it could be that the Supreme Court agreed to review this argument as a way to put it to bed, to put away, once and for all, the idea that states are put in an unconstitutionally impermissible position of accepting federal monies to run conditional grant programs like Medicaid. But in a post-Citizens United world, I’m a little more concerned.
Conservative legal circles, led by The Federalist Society and others, have been fighting for an intellectual shift in understanding Congressional power, particularly Congressional spending power. With the Medicaid expansion in the ACA, those scholars may have found their baited hook.
Should the Supreme Court agree to accept this argument the ramifications are nothing short of terrifying. Most enforcement programs of the civil rights era- Title IX of the Education Amendments of 1972 and programs that ban discrimination against people with disabilities in education would be gone. Poof.
Now, I’m not going to just pearl-clutch here. I’m not convinced that even the hard-right bloc of the Court will go that far. But they want to hear the issue for a reason which means we need to ask the question, why?
originally published at Hegemommy.