Supreme Court Obamacare Arguments: Day Three PM

Analysis of Wednesday afternoon — Medicaid Expansion

by Andrew Schlafly, JD

Justices from the liberal side of the Supreme Court frequently interrupted the attorney for the states with questions suggesting that there are at least four strong votes for upholding the Medicaid expansion. The states’ attorney had a difficult time under the questioning, and resorted to asking the Supreme Court to set a new precedent. “Establish a beachhead, say that coercion matters,” the states’ counsel said as he weakly tried to wind up his argument (but the argument extended past his alloted 30 minutes due to even more questioning).  Asking the Supreme Court to make a new precent is the weakest argument on which to rely.

Justice Elena Kagan, who worked for the Obama Administration before being nominated by President Obama to the U.S. Supreme Court, almost immediately asked the states’ attorney, “Why is a big gift from the federal government a matter of coercion?  It’s just a boatload of federal money. It doesn’t sound coercive to me, let me tell you.”

Justice Stephen Breyer emphasized that the federal government (Health and Human Services Secretary) can only act reasonably in excluding a state from the Medicaid program, and rhetorically asked the states’ counsel, “Now, does that relieve you of your fear?” (of states being kicked out of the Medicaid program if they do not agree to the expansion).  The response was no, because ObamaCare seems to give the federal government broader powers to exclude states.  Indeed, the states’ counsel pointed out, HHS officials have already implied to states that they might have to drop out (at an enormous cost to the states) if they did not accept the broad new expansion of the Medicaid program.

Justice Ruth Bader Ginsburg pointed out that only 26 states challenged the Medicaid expansion, and suggested it would be unfair to invalidate it for the remainder who do want to participate in it.

The conservative Justices offered little support for the states’ counsel during his or the government’s argument:

Justice Samuel Alito had the strongest statements against the Medicaid expansion, expressing the need for meaningful limits on federal coercion of states.

Chief Justice John Roberts suggested that the states had already agreed, based on their participation in Medicaid so far, to more conditions by the federal government as part of the Medicaid expansion in ObamaCare. Indeed, the Chief Justice suggested, the states have little basis for being surprised if the strings are later pulled back by the federal government, which would leave the states stuck with the enormous expense of covering far more poor people.

Justice Antonin Scalia invited the states’ counsel to continue his argument despite the frequent interruptions, commenting that the Supreme Court has been “on pins and needles here” during the intense argument. Justice Scalia then shifted to humor over substance, asking the states’ attorney whether he noticed that the 26 states opposing the law had Republican governors while the others were led by Democrats (N.B. that’s not entirely true, as both New Mexico and New Jersey have Republcian governors who declined to challenge the law.)

BOTTOM LINE:  A split doubleheader today: not enough conservative Justices appear willing to strike down the Medicaid expansion, although they are willing to invalidate most of ObamaCare.  The liberal side emphatically wants that the Medicaid expansion portion of ObamaCare remain law, and it appears that will be the silver lining for the Left.  So the Medicaid expansion will likely be upheld.

For transcript and audio: http://www.supremecourt.gov/oral_arguments/argument_audio_detail.aspx?argument=11-400

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