In the last part of the marathon Supreme Court arguments on the Affordable Care Act, the Court took up this question this afternoon:
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?
The
Dole case concerned whether Congress could discourage states from lowering the legal drinking age from 21 to 18 by threatening to withhold five percent of federal highway funding from states that did not comply. By a 5-4 vote, that provision was deemed legal because it was only "pressure," but not compulsion. The chief justice framed the afternoon question this way, towards the end of Paul Clement's argument for striking down the provisions as coercive:
But I want to make sure I understand where the meaningfulness of the choice is taken away [from the States], is it the amount that's being offered, that it's just so much money, of course you can't turn it down, or is it the amount that's going to be taken away if you don't take what they're offering?
[...] [W]hy isn't that a consequence of how willing they have been since the New Deal to take the Federal government's money? And it seems to me that they have compromised their status as independent sovereigns because they are so dependent on what the Federal government has done, they should not be surprised that the Federal government having attached the -- they tied the strings, they shouldn't be surprised if the Federal government isn't going to start pulling them.
The afternoon session went into a rare Court overtime in three ways—in terms of having afternoon argument in the first place, in former solicitor general Paul Clement argue for what
must be a record amount of time in a week, and in the chief justice extending his time for the Court's moderate-liberals to kick him around a bit longer, such as:
JUSTICE SOTOMAYOR: I guess my greatest fear, Mr. Clement, with your argument is the following: The bigger the problem, the more resources it needs. We're going to tie the hands of the Federal government in choosing how to structure a cooperative relationship with the States. We're going to say to the Federal government, the bigger the problem, the less your powers are. Because once you give that much money, you can't structure the program the way you want.
It's our money, Federal government. We're going to have to run the program ourself to protect all our interests. I don't see where to draw that line. The uninsured are a problem for States only because they, too, politically, just like the Federal government, can't let the poor die. And so to the extent they don't want to do that, it's because they feel accountable to their citizenry. And so if they want to do it their way, they have to spend the money to do it their way, if they don't want to do it the Federal way.
So I -- I just don't understand the logic of saying States, you can't -- you don't -- you're not entitled to our money, but once you start taking it, the more you take, the more power you have.
In my reading of the transcript, I don't have a strong sense of where the Court's conservatives are on this compared to other issues. It's certainly something with which the chief as well as Justices Scalia and Kennedy are wrestling.
(Some representative excerpts below the fold)
Magical swingatarian Justice Kennedy, questioning Paul Clement (representing the objecting states), shows his hand a bit (maybe):
JUSTICE KENNEDY: If the inevitable consequence of your position was that the Federal government could just do this on its own, the Federal government could have Medicaid, Medicare, and these insurance regulations. Assume that's true. Then how are the interests of federalism concerned? How are the interests of federalism concerned if in Florida or Texas or some other objecting States there are huge Federal bureaucracies doing what this bill allows the State bureaucracies to do. I know you have thought about that. I would just like your answer.
MR. CLEMENT: I have, and I would like to elaborate that the one word answer is "accountability."
If the Federal government decides to spend money through Federal instrumentalities and the citizenry is hacked off about it, they can bring a Federal complaint to a Federal official working in a Federal agency. And what makes this so pernicious is that the Federal government knows that the citizenry is not going to take lightly the idea that there are huge, new Federal bureaucracies popping up across the country. And so they get the benefit of administering this program through State officials, but then it makes it very confusing for the citizen who doesn't like this. Do they complain to the State official because it's being administered in the State official in a State building?
JUSTICE KAGAN: Mr. Clement, that is very confusing because the idea behind cooperative Federal/State programs was exactly a federalism idea. It was to give the States the ability to administer those programs. It was to give the States a great deal of flexibility in running those programs. And that's exactly what Medicaid is.
MR. CLEMENT: Well, that's exactly what Medicaid was. The question is: What will it be going forward? And I absolutely take your point, Justice Kagan. Cooperative federalism is a beautiful thing. Mandatory federalism has very little to recommend it because it poses exactly the kind of accountability -
JUSTICE KAGAN: Cooperative federalism does not mean that there are no Federal mandates and no Federal restrictions involved in a program that uses 90 percent here, 100 percent Federal money. It means there is flexibility built into the program subject to certain rules that the Federal government has about how it wishes its money to be used. It's like giving a gift certificate. If I give you a gift certificate for one store, you can't use it for other stores. But still you can use it for all kinds of different things.
And maybe a bit more:
JUSTICE KENNEDY: I suppose one test could be -- I just don't see that it would be very workable -is whether or not it's so big that accountability is lost, that it is not clear to the citizens that the State or the Federal Government is administering the program, even though it's a state administrator.
GENERAL VERRILLI: Well, but I think -
JUSTICE KENNEDY: I think that's unworkable.
GENERAL VERRILLI: -- this is going to come from a withdrawal situation. Their argument's about it's what you stand to lose and with respect to withdrawal.
I mean, so, does it depend on -- is it an absolute or a relative number with respect to how much of the state budget? Is it a situation where you have to make a calculation about how hard would it be for that state to make up in state tax revenues the federal revenue they would lose? Does that depend on whether it's a high tax state or a low tax state. It just seems to me -- and then, what is the political climate in that state? It seems to me like -
JUSTICE KENNEDY: In your view, does federalism require that there be a relatively clear line of accountability for political acts?
GENERAL VERRILLI: Yes, of course, it does, Justice Kennedy. But, here -
JUSTICE KENNEDY: Is that subsumed in the coercion test, or is that an independent?
GENERAL VERRILLI: You know, here, the coercion test, as it's been discussed, I think, for example, in Justice O'Connor's dissent in Dole and in some of the other literature, does address federalism concerns in the sense of the Federal Government using federal funding in one area to try to get states to act in an area where the Federal Government may not have Article I authority.
JUSTICE KENNEDY: Yes.
GENERAL VERRILLI: But, as Your Honor suggested earlier, this is a situation in which, while it is certainly true that the Federal Government couldn't require the states, as the Chief Justice indicated, to carry out this program, the federal government could, as Your Honor suggested, expand Medicare and do it itself.
JUSTICE KENNEDY: But do you think that there still is inherent and implicit in the idea of federalism, necessary for the idea of federalism, that there be a clear line of accountability so the citizen knows that it's the Federal or the State government who should be held responsible for a program?
GENERAL VERRILLI: Certainly, but I think the problem here is -
JUSTICE KENNEDY: And does coercion relate to that, or is that a separate -
GENERAL VERRILLI: Yes, but I think -
JUSTICE KENNEDY: -- is that a separate doctrine?
The chief justice and Justice Scalia had a lengthy colloquy with Donald Verrilli, the solicitor general, over what constituted coercion over a state in its accepting of federal funds for a program. See, the existing test says that such conditions must be "germane" and not "coercive," but even they can't figure out what would be coervice
and germane:
GENERAL VERRILLI: Why -- I think that -- as I said, I think they are really trying to get at the same thing, and I -- but I do think it's quite different here, and I would like to, if I could, take up each of the -
CHIEF JUSTICE ROBERTS: No, I know -- I know it's different here. I'm just trying to understand if you accept the fact or regarded as true that there is a coercion limit, or that once the Federal government -once you are taking Federal government money, the Federal government money -- can take it back, and that doesn't affect the voluntariness of your choice. Because it does seem like a serious problem. We are assuming under the Spending Clause the Federal government cannot do this. Under the Constitution it cannot do this. But if it gets the State to agree to it, well, then it can. And the concern is, if you can say: If you don't agree with this, you lose all your money, whether that's really saying the limitation in the Constitution is -- is largely meaningless.
GENERAL VERRILLI: Well, but I don't think that this is a case that presents that question.
CHIEF JUSTICE ROBERTS: No, no, I know. know this. I don't know if I will grant it to you or not. But let's assume it's not this case. Do you recognize any limitation on that concern?
GENERAL VERRILLI: I think the Court has said in Steward Machine and Dole that this is something that needs to be considered in an appropriate case. And we acknowledge that. But I do think it's so dependent on the circumstances that it's very hard to say in the abstract with respect to a particular program that there is a -
JUSTICE SCALIA: You can't imagine a case in which it is both germane and yet coercive, is what you are saying. There is no such case as far as you know.
GENERAL VERRILLI: Well, I am not prepared to -- to say right here that I can -- that -
JUSTICE SCALIA: I wouldn't think that is a surprise question, you know?
GENERAL VERRILLI: Congress has authority to act and -
JUSTICE SCALIA: I can't think of one. I'm not blaming you for not thinking of one.
(Laughter.)
But if you wanted for reason to worry about the chief justice's position, here's where you'll find fodder:
CHIEF JUSTICE ROBERTS: Well, but that's just saying that when, you know, the analogy that has been used, the gun to your head, "your money or your life," you say well, there is no evidence that anyone has ever been shot.
GENERAL VERRILLI: But -
CHIEF JUSTICE ROBERTS: Well, it's because you have to give up your wallet. You don't have a choice.
GENERAL VERRILLI: But that -
CHIEF JUSTICE ROBERTS: And you cannot represent -- you cannot represent that the Secretary has never said, "and if you don't do it, we are going to take away all the funds. " They cite the Arizona example; I suspect there are others, because that is the leverage.
GENERAL VERRILLI: But it -
CHIEF JUSTICE ROBERTS: I'm not saying there is anything wrong with it.
GENERAL VERRILLI: It's not coercion, Mr. Chief Justice.
And this from the CJOTUS, later on:
[T]he concern is that the Secretary has the total and complete say because the Secretary has the authority under this provision to say you lose everything. No one's suggested in the normal course that will happen, but so long as the Federal government has that power, it seems to be a significant intrusion on the sovereign interests of the State.
Now I'm not -- it may be something they gave up many decades ago when they decided to live off of Federal funds. But I don't think you can deny that it's a significant authority that we are giving the Federal government to say that you can take away everything if the States don't buy into the next program.
And as for Nino, hope he's playing devil's advocate here:
Doesn't the question come down to this -maybe you can answer this yes. But -- but isn't the question simply: Is it conceivable to you, as it was evidently not to Congress, that any State would turn down this offer, that they can't refuse? Is it conceivable to you that any State would have said no to this program? Congress didn't think that, because some of its other provisions are based on the assumption that every single State will be in this thing.
Now, do you -- can you conceive of a State saying no? And -- and if you can't, that sounds like coercion to me.
Earlier on, however, it was pinata time for Paul Clement (as pinata, not stick):
JUSTICE KAGAN: Well, if you are right, Mr. Clement, doesn't that mean that Medicaid is unconstitutional now?
MR. CLEMENT: Not necessarily, Justice Kagan. And again, it's because we are not here with a one trick pony. One of the factors -- we point you to three factors that make this statute uniquely coercive. One of them is the sheer size of this program. And, you know, if you want a gauge on the size of this program, the best place to look is the government's own number. Footnote 6, page 73 -
JUSTICE KAGAN: So, when does a program become too big? I want you to give me a dollar number.
MR. CLEMENT: $3.3 trillion over the next 10 years. That's -- that -
JUSTICE BREYER: I'll tell you this number, which I did look up, that the amount, approximately, if you look into it -- as a percentage of GDP, it's big, but it was before this somewhere about 2-point-something percent, fairly low, of GDP. It'll go up to something a little bit over 3 percent of GDP. And now go look at the comparable numbers, which I did look at, with the expansion that we're talking about before.
The expansion from 0 to 18 or even from 0 to 6. And while you can argue those numbers, it's pretty hard to argue that they aren't roughly comparable as a percentage of the prior program or as a percentage of GDP.
If I'm right on those numbers or even roughly right -- I don't guarantee them -- then would you have to say, well, indeed, Medicaid has been unconstitutional since 1964.
And if not, why not?
MR. CLEMENT: The answer is no, and that's because we're here saying there are three things that make this statute unique.
JUSTICE SCALIA: What are your second and third? I'm on pins and needles to hear your -
(Laughter.)
MR. CLEMENT: One is the sheer size. Two is the fact that this statute uniquely is tied to an individual mandate which is decidedly nonvoluntary. And three is the fact that they've leveraged the prior participation in the program, notwithstanding that they've broken this out as a separately segregated fund going forward, which is not -
JUSTICE KAGAN: So on the third -- on the third, suppose you had the current program and Congress wakes up tomorrow and says "we think that there's too much fraud and abuse in the program, and we're going to put some new conditions on how the States use this money so we can prevent fraud and abuse, and we're going to tie it to everything that's been there initially."
Unconstitutional?
I haven't quoted Justice Ginsburg a lot, given that her vote isn't much in question. But I do like this whole section, and will reproduce it in full:
JUSTICE GINSBURG: Mr. Clement, may I -- may I ask you -- question another line. You represent, what, 26 States?
MR. CLEMENT: That's right, Justice Ginsburg.
JUSTICE GINSBURG: And we are also told that there are other States that like this expansion and they are very glad to have it. The relief that you are seeking is to say the whole expansion is no good, never mind that there are States that say, we don't feel coerced, we think this is good.
You are -- you are saying that because you represent a sizeable number of States, you can destroy this whole program, even though there may be as many States that want it, that don't feel coerced, the States, thinking that this is a good thing?
MR. CLEMENT: Justice Ginsburg, that's right, but that shouldn't be a terrible concern, because if Congress wants to do what it did in 1972, and pass a statute that makes the expansion voluntary, every State that thinks that this is a great deal can sign up.
What's telling here, though, is 26 States, who think that this is a bad deal for them, actually are also saying that they have no choice but to take this because they can't afford to have their entire participation in this 45-year-old program wiped out, and they have to go back to square one and figure out how they are going to deal with the visually impaired in their State, the disabled in their State -
JUSTICE SCALIA: Mr. Clement, I didn't take the time to figure this out, but maybe you did. Is there any chance at all that 26 States opposing it have Republican governors and all of the states supporting it have Democratic governors? Is that possible?
MR. CLEMENT: There's a correlation, Justice Scalia.
JUSTICE SCALIA: Yes.
(Laughter.)
JUSTICE GINSBURG: Let -- let me ask you another thing, Mr. -- Mr. Clement. Most colleges and universities are heavily dependent on the government to fund their research programs and other things. And that has been going on for a long time. And then Title IX passes, and a government official comes around and say -- says to the colleges, you want money for your physics labs and all the other things you get it for, then you have to create an athletic program for girls. And the recipient says, I am being coerced, there is no way in the world I can give up all the funds to run all these labs that we have, I can't give it up, so I'm being coerced to accept this program that I don't want.
Why doesn't your theory, if your theory is any good, why doesn't it work any time, something -someone receives something that is too good to give up?
General Verrilli got in something close to a closing statement in this case, which is rare for the Court. Worth reading in full:
But if I may just say in conclusion that --I would like to take half a step back here, that this provision, the Medicaid expansion that we are talking about this afternoon, and the provisions we have talked about yesterday, we have been talking about them in terms of their effect as measures that solve problems, problems in the economic marketplace, that have resulted in millions of people not having health care because they can't afford insurance.
There is an important connection, a profound connection between that problem and liberty. And I do think it's important that we not lose sight of that. That in this population of Medicaid eligible people who will receive health care that they cannot now afford under this Medicaid expansion, there will be millions of people with chronic conditions like diabetes and heart disease, and as a result of the health care that they will get, they will be unshackled from the disabilities that those diseases put on them and have the opportunity to enjoy the blessings of liberty.
And the same thing will be true for -- for a husband whose wife is diagnosed with breast cancer and who won't face the prospect of being forced into bankruptcy to try to get care for his wife and face the risk of having to raise his children alone and I can multiply example after example after example.
In a very fundamental way this Medicaid expansion, as well as the provisions we discussed yesterday, secure of the blessings of liberty. And I think that that is important as the Court's considering these issues that that be kept in mind. The -- the Congress struggled with the issue of how to deal with this profound problem of 40 million people without health care for many years, and it made a judgment, and its judgment is one that is, I think, in conformity with lots of experts thought, was the best complex of options to handle this problem.
Maybe they were right, maybe they weren't, but this is something about which the people of the United States can deliberate and they can vote, and if they think it needs to be changed, they can change it. And I would suggest to the Court with profound respect for the Court's obligation to ensure that the Federal Government remains a government of enumerated powers, that this is not a case in any of its aspects that calls that into question. That this was a judgment of policy, that democratically accountable branches of this government made by their best lights, and I would encourage this Court to respect that judgment and ask that the Affordable Care Act, in its entirety, be upheld. Thank you.
Expect rulings during the week of June 25. My over/under line is 5.5 separate opinions.