Landscape of the Amici Supporting Florida’s Medicaid Brief

Reporting results for its monthly Health Tracking Poll published today, the Kaiser Family Foundation introduced the summary of its findings thus:  “As the Supreme Court prepares to hear legal challenges to the health reform law in March, most Americans expect the Justices to base their ruling on their own ideological views rather than their interpretation of the law…. Other key findings include:  The public doubts the Supreme Court renders judgments based solely on the law. Three-quarters (75%) say they think that, in general, Justices let their own ideological views influence their decisions while 17 percent say they usually decide cases based on legal analysis without regard to politics and ideology….”  Notable for a term that has the potential to render a few blockbuster cases.  (The public’s opinion of the Court is worthy of its own conversation, but it’s best left for another post.) 

It is not just the general public that believes politics will win out; amici supporting the states seem to be appealing to ideology.  In reading all of the amicus briefs supporting Petitioners’ claim that the Medicaid expansion is unconstitutionally coercive, several themes reflecting this strategy emerge, such as:

  • Rejection or non-acceptance of New Deal era programs and precedents (the foundation of spending programs such as Medicare and Medicaid).
  • Asking the Court to invent a coercion doctrine to limit the power to spend and/or seeking a return to U.S. v. Butler, the 1936 decision that articulated a Hamiltonian understanding of the power to spend as a separate enumerated power but that also declared the provision of the act at issue to be unconstitutional as infringing on states’ rights.  (One brief even seeks reversal of Butler’s adoption of the Hamiltonian view in favor of the Madisonian view that the power to spend only supports the other enumerated powers.)
  • Eschewing precedent – paragraphs unfold with no cites (the Texas brief is a good example).  Citations that do exist are often to concurrences, dissents, scholarship, or think-tank reports.  Justice Kennedy’s concurrences and dissents are well represented. 
  • Providing a limited picture of the Medicaid Act and the expansion by failing to account for prior mandatory modifications to the program as well as the statutory architecture of the program (which contains both mandatory and optional elements). 
  • An assertion that states cannot leave Medicaid because the federal government somehow improperly taxes state citizens, therefore states cannot tax their populations enough to pay for a state-based Medicaid equivalent. (This reflects an argument articulated by Professor Lynn Baker in her spending power articles, though it is not always attributed.) 
  • Hyperbolic analogies (such as characterizing states as drug addicts).

 A couple of additional thoughts come to mind in reading the amicus briefs:

  • State dependence on federal funding speaks to state behavior, not federal.  
  • Coercion is too nebulous and perverse to be a coherent constitutional doctrine. This is illuminated by the amicus briefs, which essentially assert that the more money the federal government offers, the less control it should be able to exercise over either the money or the states.
  • The Court has no standard by which to judge whether the federal government offers too much money to states.  Too much money relative to what?  If healthcare is expensive, then in a cooperative federalism arrangement the federal government must offer sufficient money to encourage a state to implement a program that will be costly.  The sum of money speaks to the nature of the program, but it does not dictate whether the federal government may permissibly offer the money to the states. 
  • The tax argument is a distraction that denies the existence and purpose of the 16th Amendment as well as long-standing reliance on redistributive tax policy.

Despite the Medicaid expansion being the surprise question before the Court for many observers, it may dictate the outcome of the case.  The Court could dodge the Commerce Clause question by virtue of the Anti-Injunction Act but still limit congressional authority by adopting the anti-federal spending position of the states and their amici.  An additional theme – that Medicaid is essential to the minimum coverage provision – could make it so that Medicaid is the downfall of PPACA rather than the individual mandate.  Such a result would fly in the face of severability jurisprudence; but, much about this litigation is unprecedented.

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4 Responses

  1. I. Glenn Cohen says:

    Another nice post Nicole! On the last point, I’ll note that if the ACA falls because of the Medicaid Expansion (wouldn’t that be something?), that will in part be a function of the position the Obama and administration and the ACA challengers have taken as to severability as I understand it, that it all stands or falls together. One can understand why the challengers are motivated to take that view. As for the DOJ (full disclosure, I used to work in the DOJ office that litigates these kinds of cases but before this litigation was ever on the horizon) to me it has to be viewed as a kind of game of chicken — if they make the consequence of striking down a piece of the legislation mean that all the dominoes fall, the court will be unlikely to go there. That is a high-stakes game.
    As I suggest at the end of this interview with the New England Journal of Medicine,, the idea that NOTHING in the bill is severable seems very hard to swallow. Things like the follow-on biologics parts of the bill seem so separate from the rest, that I think it is quite plausible that Congress would want it retained even if the expansion or the mandate go. SCOTUS has quite sensibly appointed an amicus to argue for severability, but should it find part of the ACA unconstitutional I do hope the court will also seek supplemental briefing on the severability question from the DOJ since the bill has so much in it and is so complex, that cutting it up requires a fair amount of knowledge and thought.

  2. Hopefully some good amicus briefs will come in defending Medicaid!

  3. Brett Bellmore says:

    It seems to me that the quite defensible argument for non-severability, is that Congress knows how to write a severability clause into a bill when they want, and they didn’t in this bill.

  4. Nicole Huberfeld says:

    Glenn, thanks for sharing your insights, these are great points. It seems to me that regardless of the game of chicken, the Court has an obligation to be more thoughtful as a matter of separation of powers (let alone the long line of precedent for the Court to sever a statute whether or not it contains a severability clause). Here, the statute covers so much territory – private insurance, Medicare, Medicaid, public health issues, drug manufacturing issues, etc. – that it’s nonsensical to read it as non-severable. But, as you know, the Court does not like to delve into the specifics of healthcare statutes, especially Medicare and Medicaid. And a number of the briefs speak in sweeping terms about “Title II” and its nonseverability from the whole universal insurance project. I just hope the ‘strategy’ does not backfire!