SCOTUS Day 3 on the Affordable Care Act – Part 2

Posted by AzBlueMeanie:

The last of the arguments before the U.S. Supreme Court on the Affordable Care Act dealt with the expansion of medicaid coverage, and what the challengers to the law call the "coercion" theory — the federal government withholding federal Medicaid funds to states that refuse to participate in the ACA. At its heart, this is a "states' rights" theory of sovereignty.

Lyle Denniston at SCOTUSblog.com summarizes the arguments. Argument recap: Will Medicaid be sacrificed?:

Unless a closing oration by a top government lawyer stirs some real sympathy for the poor, the new health care law’s broad expansion of the Medicaid program that serves the needy may be sacrificed to a historic expression of judicial sympathy for states’ rights.  It probably would require the Court to be really bold, to strike down a program passed by Congress under its spending power, and to do so for the first time in 76 years, but the temptation was very much in evidence in the final round of the Court’s hearings this week on the Affordable Care Act.  If that happens, it probably would be done by a 5-4 vote.

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The Justices were actively engaged in what was the Court’s first full exploration in history of the theory — never put into actual practice — that the conditions that Congress attaches to money it hands out to the states can be so onerous that they deprive the states of their sovereign independence, coercing them into compliance with federal controls.   Chief Justice John G. Roberts, Jr., allowed the argument to run 25 minutes beyond the scheduled hour.  The end result was what appeared to be a very sharp division within the Court, straight along ideological lines, with the skeptics about this “coercion theory” quite conspicuously in the minority.

 

If, as would be expected, Thomas wound up voting with the latter four, that could make a majority to give some new life to the states’ rights theory that Clement was pressing.  It definitely would be an exaggeration to suggest that those four were wholly and uncritically committed to the states-as-victims concept, but it also would be wrong to indicate that they would have any part in declaring the theory totally dead before it actually have been given any real life in the Court’s history of applying the Constitution’s Spending Clause.

What may give the conservatives some pause is that, once the Court started down the road of second-guessing Congress’s use of its spending authority, it woiuld never hear the end of it.  So, if there does turn out to be an actual embrace of it in the health care case, it might be quite cautious.  For those Justices, the theory definitely moved on Wednesday from abstraction to potentiality, and perhaps to the threshold of reality.  The tough part of writing a decision to employ it would be to describe how it might be kept within bounds.   One facet of such a ruling, the hearing seemed to suggest, would be that the federal government — in imposing conditions on states’ use of federal dollars — would actually have to have made something that counts as a genuine threat — something that seriously affronted their dignity and sovereignty.

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Justice Sotomayor probably came closest to exposing a potential weakness in the theory when she expressed her “greatest fear.”  She told Clement: ”We’re going to tie the hands of the federal government in choosing how to structure a cooperative relationship with the states.  We’re going to say to the federal government, the bigger the problem, the less your powers are. Because once you give that much money, you can’t structure the program the way you want."  It was a good counter to Clement’s emphasis on the size of the money that would be wihdrawn from the states if they balked at the conditions laid down with the Medicaid expansion.

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Justice Scalia brought up the Court’s prior mention of the coercion theory, and asked what the government lawyer thought the Court had meant.  Solicitor General Verrilli said that it probably meant that coercion would exist only if a situation where the federal government imposed a condition that would cause “a fundamental transformation of the structure of state government in a situation in which the state didn’t have a choice.”

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“Does federalism require,” Justice Kennedy asked, “that there be a relatively clear line of accountability for political acts?  Is that subsumed in the coercion test, or is that an independent one”   Verrilli conceded that the coercion test was related to concerns about threats to federalism. Kennedy responded that it was “necessary for the idea of federalism that there be a clear line of accountability so the citizen knows it’s the federal or the state government should be held responsible for the program.”

The seeming significance of that exchange was that, if Kennedy were persuaded that the coercion theory was, indeed, a part of the accountability equation, then he might well embrace it.  It was not a promising moment for Verrilli.  Other comments by Kennedy later on indicated that he was warming to the theory.

As Lyle Denniston alludes to, recognition of this novel "coercion" theory would be a radical departure from the Court's jurisprudence on the spending power of Congress. As Denniston points out, the Court has not intervened in the spending power of Cogress for more than 75 years.

One would think the Court would want to exercise caution in exploring a novel theory that contravenes more than 75 years of comity between co-equal branches of government. But after Citizens United v. FEC, anything is possible from this Court.

The transcript of the Medicaid oral argument is here. The audio is here.

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