November 29, 2011
(Editor’s note: This is part 2 in a five-part series of FantasySCOTUS predictions on the outcome of the health care law case. Here’s part 1.)
In the uproar over the individual mandate, the constitutionality of the Affordable Care Act’s Medicaid expansion has been somewhat ignored as an issue.
There are several reasons for this, but most of them are related to one of two things: it doesn’t (directly) affect individual rights and it’s kind of a complicated legal question.
Just because the issue hasn’t gotten a lot of attention doesn’t mean that it isn’t important legally.
Quite the opposite actually: the question of whether Congress may attach certain conditions to the receipt by states of federal funds affects a wide array of state-level laws and activities.
The question presented in this case, though, isn’t likely to shake any legal foundations, since the ACA’s Medicaid expansion doesn’t venture beyond SCOTUS’s previously drawn boundaries on what Congress may do under the Spending Clause.
In case you were wondering, this Medicaid expansion that the states are challenging is a broadening of eligibility standards to include individuals under 65 who earn up to, or less than 133% of the federal poverty line beginning in 2014.
If you’re unfamiliar with Medicaid’s current eligibility qualifications, this is actually quite a significant expansion (which is why so many states are opposed, since the program is jointly funded by state and federal budgets).
That’s all beside the point for our purposes, though, since under current Spending Clause jurisprudence, this latest expansion is nothing revolutionary.
As another quick side note, the Spending Clause is the other half of the Taxing Clause that gives Congress broad powers to spend the federal budget for the “general welfare” (you can read the lower court’s opinion on the issue for more).
Anyway, the law seems to be so settled on this point that even Judge Vinson’s 11th Circuit District Court opinion that struck down the mandate and found it unseverable from the rest of the act still found the Medicaid expansion constitutional.
Although Vinson’s ruling effectively invalidated the expansion on separate grounds, my point is still valid: Spending Clause jurisprudence is settled on this point, and even the most hostile judicial opinions so far have found the expansion constitutional.
That’s why seven of the nine Justices will uphold it (Roberts, Alito, Kennedy, Breyer, Ginsburg, Sotomayor, and Kagan).
That just leaves the last two, who were, in the previous post, the easiest two Justices to place: Scalia and Thomas.
Why are these two the most difficult this time?
Both are notorious for their willingness to ignore precedent to apply what they believe is the correct interpretation of the Constitution (Thomas more so than Scalia).
There’s also an additional element to it, and as much as I hate to impute any wavering from judicial ethics, I’m a realist more than an idealist, so I have to calculate it in.
That element is the duo’s political connections, which run deeper than the other Justices’ (again, Thomas’s more so than Scalia’s).
Scalia’s tend to be more general affiliations with GOP leaders (i.e. a hunting trip with Dick Cheney, which fortunately he emerged from unscathed), but Thomas’s connections seem to be directly relevant to the health care law.
The question that these connections raise is to what extent they will influence their view on Spending Clause jurisprudence vis-à-vis the ACA’s Medicaid expansion.
With seven Justices almost certainly voting to uphold it, any dissents from either of them would be purely symbolic.
On the other hand, in the Spending Clause’s most famous case – South Dakota v. Dole – Congress employed its authority to push an arguably conservative agenda: a national minimum drinking age of 21.
Thus, broad Spending Clause powers aren’t necessarily solely valued by a liberal judicial mindset.
In the end, then, what we’ll probably see from Thomas and Scalia are separate concurrences on the issue to ensure that their individual viewpoints are preserved in the final opinion.
But they will still vote to uphold the expansion, making it unanimous.
Does Congress exceed its enumerated powers and violate basic principles of federalism when it coerces States into accepting onerous conditions that it could not impose directly by threatening to withhold all federal funding under the single largest grant-in-aid program, or does the limitation on Congress‘s spending power that this Court recognized in South Dakota v. Dole, 483 U.S. 203 (1987), no longer apply?
Lower Court’s Decision
The Court of Appeals of the 11th Circuit held that the expansion of Medicaid by the ACA is constitutional.
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