Friday, May 25, 2018
Opinion

Blumner: The uncertainty of 'coercion'

The 26 states that have rejected Medicaid expansion are less laboratories of democracy than fiefs of despair. This bloc of states, largely with Republican governors and Republican-controlled Legislatures, is denying health coverage to 8 million people living in poverty. Their reasoning is the same as Republicans in Congress have for cutting food stamps: Refusing a helping hand, a.k.a. causing suffering, discourages government dependency.

Here's a news flash: Many of the people who would qualify for expanded Medicaid already work hard as the nation's cashiers, retail clerks and janitors. Leaving them without medical coverage is unjustified and cruel.

Republicans tout a fly-from-the-nest-or-die model of governance — for the poor, that is. If you're a corporate agri-business that wants farm subsidies, that's another story.

But let's back up a bit. There is another place to lay blame for turning the country into a patchwork of backward versus compassionate states: U.S. Supreme Court Chief Justice John Roberts. Yes, he saved the day for the Affordable Care Act by joining the court's liberal members to uphold it. This so shocked Fox News and CNN they initially reported the wrong result. But his ruling in National Federation of Independent Business vs. Sebelius also gave states the right to opt out of Medicaid expansion and that has been a disaster.

Roberts not only threw a wrench into the architecture of the new health reform law — which relied on Medicaid for the very poor and private insurance with federal subsidies for the middle class whose employers don't offer insurance — he injected uncertainty into the entire experiment in joint federal-state programs known as cooperative federalism.

Medicaid, a part of Lyndon Johnson's Great Society, has been in existence since 1965. It was voluntary for states, but eventually every state joined the program. The federal government pays between 50 and 83 percent of the cost of health care for the poor and states pay the rest. Over the years, Congress has made changes, including expanding coverage to new beneficiaries that states had to accept or drop out of the program entirely. The Affordable Care Act followed this same approach, but to sweeten the deal, the federal government would pay 100 percent of the expansion's cost for the first three years and no less than 90 percent in later years.

"Coercion," cried 26 states —- including Florida — that sued. States would have no real choice but to go along with expansion. This argument didn't create much chatter among legal commentators. It looked like a slam-dunk loser. Coercion claims had never before overturned a federal statute. Even when Congress conditioned a portion of federal highway funds on states raising the minimum legal drinking age to 21, the U.S. Supreme Court approved. Congress has the power to spend money for the general welfare and fix the terms for receipt of it, said the court.

When a lower federal court in Florida and the 11th U.S. Circuit Court of Appeals struck down the individual mandate as unconstitutional, it left alone Medicaid expansion as a valid exercise of congressional power. But Roberts bought the states' rights argument and brought along six fellow justices in one facet of the court's ruling. He said the pressure to expand Medicaid was really "compulsion" because the stakes are so high.

What Roberts did not say was where the line sits between acceptable conditions on federal funds and unconstitutional state coercion. He offered almost no guidance except to say, in effect, "I know it when I see it," to borrow Justice Potter Stewart's famously cryptic formulation for identifying what constitutes illegal obscenity.

The uncertainty created by Roberts' ruling has huge potential implications. In education, infrastructure and a myriad of other ways, the federal government partners with the states and affixes regulations and restrictions on the use of funds. But now that states have a basis to sue when rules change, Congress may simply choose to cut states out entirely. Roberts' ruling appears to be a victory for conservatives and states' rights, but it might actually lead to a bigger federal government.

In the meantime, for poor Americans in states rejecting Medicaid expansion, it's just cruel.

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