The Medicaid issue argued this afternoon has long been viewed as an uphill battle for the states because there is no clear law that articulates the types of allowable conditions on federal spending. But the states may have, against all odds, pulled off a win today.
The liberal justices gave Paul Clement a chilly reception, joined even by Chief Justice Roberts at times. Justices Kagan and Ginsburg had a hard time with the idea that a “boatload of federal money” could be viewed as coercive or a bad thing rather than simply a great gift. Justice Breyer was characteristically sanguine about the good sense and good will of government. He suggested that the Secretary of Health and Human Services would never really use the authority to cancel all Medicaid funding for states that don’t want to participate in the new expansion. He claimed any aggrieved states could simply sue to strike down such a ruling as “unreasonable.”
Justice Scalia balked at that: “Do we strike down unreasonable statutes? My God!” He claimed that such a case would fail because it would be hard to argue that a secretary exercising power explicitly given to her by Congress was acting unreasonably. The solicitor general, for his part, didn’t want to suggest the secretary was even subject to limits for reasonableness, as Justice Breyer had suggested.
Justices Alito, Scalia, and Kennedy all expressed concern with the absence of a real choice on the part of the states. The solicitor general was unable to come up with any example of a germane spending condition that was coercive, so to go along with him the justices would probably have to explicitly or implicitly overrule the Dole case that suggested the coercion limitation on the spending clause. Justice Kennedy expressed disbelief that the alternative of losing all funds was an option for states. He said, “There’s no realistic choice. There’s no real choice.” He and Justice Alito both pointed out that Congress provided no alternative to the program precisely because they knew no states could turn them down.
Chief Justice Roberts is the mystery vote after today’s arguments. He alternately called the expansion a gun to the head of the states and suggested that states had given up their freedom when they started living off the federal dole. By accepting federal funds, “They tied the strings, they shouldn’t be surprised if they start pulling them.”
The solicitor general telegraphed his own concern about his position by ending with a maudlin sob story about individuals going bankrupt from health-care costs that seemed embarrassingly out of place in the discussion of the legal doctrines at play in this case. It is also telling that Justice Sotomayor at one time asked for more discussion of the policy, not legal, implications of the decision. I hope the justices won’t take the bait and make this decision one about health-care policy or even “empathy,” but will focus on the Constitution and the law.