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Portrait, Chief Justice John Roberts
Chief Justice John Roberts
Part 1 of 2

The opinion of the Supreme Court (PDF) regarding the constitutionality of the Affordable Care Act has mostly drawn attention to the individual mandate. Five justices of the Supreme Court, the four less conservative justices plus the author of the opinion, Chief Justice John Roberts, found that the individual mandate was a valid exercise of Congress' taxing power. I myself have focused much attention on the views expressed by the five conservative justices regarding Congress' power under the Commerce and Necessary and Proper powers and the threat these views may pose to our conception of our modern national government as established by the New Deal and court decisions of the era.

But there is no doubt that the first effects of the Court's decision will come in the area regarding ACA's Medicaid expansion provisions. For the first time ever, the Supreme Court ruled that Congress had exceeded its spending power by placing "coercive" conditions on federal funding to states. A peculiar aspect of this part of the Court's decision is that only three justices joined this part of the opinion; remarkably, Justices Breyer and Kagan joined the chief justice in this part of the opinion while Justices Ginsburg and Sotomayor dissented. Normally, a holding of the Court requires at least five assents to the result. In this case, the four conservative dissenters did not assent to any part of Chief Justice Roberts' opinion, despite the fact they appeared to agree with everything in it except the taxing power holding. Conceivably, lower courts could in fact ignore the Medicaid expansion portion of the chief justice's opinion as dicta, not a holding of the Court, but this would fly in the face of the fact that seven justices actually agreed with the result. This seems an unlikely occurrence.

The apparent temper tantrum of the four conservative justices (they clearly should have at least joined in the results they agreed with in the chief justice's opinion) is not likely to have an actual effect on how lower courts (or the federal government and the states) will interpret the decision.

But this is only the beginning of the chaos the chief justice's opinion creates regarding the Medicaid expansion issue. Most commentary has focused on the pronouncements of many Republican governors (such as Louisiana Governor Bobby Jindal, Texas Governor Rick Perry and Lex Luthor himself, Florida Governor Rick Scott) that their states will not accept Medicaid expansion as provided for by ACA. Nor indeed, they've declared, will they establish the state insurance exchanges which ACA requires.

With regard to the exchanges, ACA provides that the federal government can establish insurance exchanges in those states where the state refuses to do so itself. Much less clear is what the federal government can do with regard to the Medicaid-related provisions of ACA. Unlike the apparent assumption of the chief justice and Justices Breyer and Kagan, ACA makes many changes to the Medicaid structure that are not dependent upon the expansion of Medicaid eligibility to person at 133 percent of the federal poverty level. What of those provisions? Are those "optional" for the states? If so, which ones? And what options does the federal government possess regarding states that reject not only Medicaid expansion but also modifications to the "existing" Medicaid program? In many ways, the opinion of the chief justice raises more questions than it answers.

(Continue reading below the fold)

To better understand these issues, let's start with trying to understand what precisely the chief justice's opinion purports to rule with regard to "Medicaid expansion." Roberts wrote:

Nothing in our opinion precludes Congress from offering funds under the Affordable Care Act to expand the availability of health care, and requiring that States accepting such funds comply with the conditions on their use. What Congress is not free to do is to penalize States that choose not to participate in that new program by taking away their existing Medicaid funding. Section 1396c gives the Secretary of Health and Human Services the authority to do just that. It allows her to withhold all “further [Medicaid] payments . . . to the State” if she determines that the State is out of compliance with any Medicaid requirement, including those contained in the expansion. 42 U. S. C. §1396c. In light of the Court’s holding, the Secretary cannot apply §1396c to withdraw existing Medicaid funds for failure to comply with the requirements set out in the expansion. [Emphasis added.]
That seems clear enough. Unfortunately it begs the question: what part of the Affordable Care Act related to Medicaid is part of the "requirements set out in the expansion?" This is no mere academic question. In his reasoning in response to Justice Ginsburg's dissent on this issue, the chief justice wrote:
JUSTICE GINSBURG claims that Dole is distinguishable because here “Congress has not threatened to withhold funds earmarked for any other program.” Post, at 47. But that begs the question: The States contend that the expansion is in reality a new program and that Congress is forcing them to accept it by threatening the funds for the existing Medicaid program. We cannot agree that existing Medicaid and the expansion dictated by the Affordable Care Act are all one program simply because “Congress styled” them as such. Post, at 49. If the expansion is not properly viewed as a modification of the existing Medicaid program, Congress’s decision to so title it is irrelevant.13 [Emphasis added.]
Roberts does not explain what part of ACA is part of the "Medicaid expansion" and what part may not be. In footnote 13 of his opinion, the he writes:
Nor, of course, can the number of pages the amendment occupies, or the extent to which the change preserves and works within the existing program, be dispositive. Cf. post, at 49–50 (opinion of GINSBURG, J.). Take, for example, the following hypothetical amendment: “All of a State’s citizens are now eligible for Medicaid.” That change would take up a single line and would not alter any “operational aspect[ ] of the program” beyond the eligibility requirements. Post, at 49. Yet it could hardly be argued that such an amendment was a permissible modification of Medicaid, rather than an attempt to foist an entirely new health care system upon the States.
It may not be dispositive of the issue the chief justice purports to decide, but surely more explication of what parts of ACA are part of the "Medicaid expansion" under discussion was in order (and remains in order.) That discussion will surely now commence. Chaos is likely to ensue.

Let's start with a review of the Affordable Care Act (PDF) and its 974 pages. A quick overview reveals that numerous modifications of the existing Medicaid program that cannot be interpreted to be related to the "Medicaid expansion" are included in the law. For example, a review of the table of contents to Title II of ACA demonstrates that the many modifications to the existing Medicaid programs simply cannot be characterized as part of a "new" program or of the Medicaid "expansion":


Subtitle A—Improved Access to Medicaid
Sec. 2001. Medicaid coverage for the lowest income populations ............... 179
Sec. 2002. Income eligibility for nonelderly determined using modified
gross income .................................................................................................. 186
Sec. 2003. Requirement to offer premium assistance for employer-sponsored
insurance ............................................................................................. 190
Sec. 2004. Medicaid coverage for former foster care children ..................... 191
Sec. 2005. Payments to territories ................................................................. 191
Sec. 2006. Special adjustment to FMAP determination for certain States
recovering from a major disaster ................................................................. 192
Sec. 2007. Medicaid Improvement Fund rescission ..................................... 193

Subtitle B—Enhanced Support for the Children’s Health Insurance Program
Sec. 2101. Additional federal financial participation for CHIP .................. 194
Sec. 2102. Technical corrections .................................................................... 197

Subtitle C—Medicaid and CHIP Enrollment Simplification
Sec. 2201. Enrollment Simplification and coordination with State Health
Insurance Exchanges .................................................................................... 198
Sec. 2202. Permitting hospitals to make presumptive eligibility determinations
for all Medicaid eligible populations .......................................... 200

Subtitle D—Improvements to Medicaid Services
Sec. 2301. Coverage for freestanding birth center services ......................... 201
Sec. 2302. Concurrent care for children ........................................................ 202
Sec. 2303. State eligibility option for family planning services .................. 203
Sec. 2304. Clarification of definition of medical assistance ......................... 206

Subtitle E—New Options for States to Provide Long-Term Services and Supports
Sec. 2401. Community First Choice Option .................................................. 206
Sec. 2402. Removal of barriers to providing home and community-based
services ........................................................................................................... 211
Sec. 2403. Money Follows the Person Rebalancing Demonstration ........... 214
Sec. 2404. Protection for recipients of home and community-based services
against spousal impoverishment .......................................................... 215
Sec. 2405. Funding to expand State Aging and Disability Resource Centers
................................................................................................................. 215
Sec. 2406. Sense of the Senate regarding long-term care ........................... 215

Subtitle F—Medicaid Prescription Drug Coverage
Sec. 2501. Prescription drug rebates ............................................................. 216
Sec. 2502. Elimination of exclusion of coverage of certain drugs ............... 219
Sec. 2503. Providing adequate pharmacy reimbursement .......................... 220

Subtitle G—Medicaid Disproportionate Share Hospital (DSH) Payments
Sec. 2551. Disproportionate share hospital payments ................................. 223

Subtitle H—Improved Coordination for Dual Eligible Beneficiaries
Sec. 2601. 5-year period for demonstration projects .................................... 224
Sec. 2602. Providing Federal coverage and payment coordination for dual
eligible beneficiaries ..................................................................................... 225

Subtitle I—Improving the Quality of Medicaid for Patients and Providers
Sec. 2701. Adult health quality measures .................................................... 227
Sec. 2702. Payment Adjustment for Health Care-Acquired Conditions ..... 229
Sec. 2703. State option to provide health homes for enrollees with chronic
conditions ................................................................................................... 229
Sec. 2704. Demonstration project to evaluate integrated care around a
hospitalization ............................................................................................... 233
Sec. 2705. Medicaid Global Payment System Demonstration Project ........ 235
Sec. 2706. Pediatric Accountable Care Organization Demonstration
Project ............................................................................................................ 236
Sec. 2707. Medicaid emergency psychiatric demonstration project ............ 237

Subtitle J—Improvements to the Medicaid and CHIP Payment and Access
Commission (MACPAC)
Sec. 2801. MACPAC assessment of policies affecting all Medicaid beneficiaries
.......................................................................................................... 239

Subtitle K—Protections for American Indians and Alaska Natives
Sec. 2901. Special rules relating to Indians ................................................ 244
Sec. 2902. Elimination of sunset for reimbursement for all medicare part
B services furnished by certain indian hospitals and clinics .................... 244

Subtitle L—Maternal and Child Health Services
Sec. 2951. Maternal, infant, and early childhood home visiting programs 245
Sec. 2952. Support, education, and research for postpartum depression ... 255
Sec. 2953. Personal responsibility education ................................................ 258
Sec. 2954. Restoration of funding for abstinence education ........................ 263
Sec. 2955. Inclusion of information about the importance of having a
health care power of attorney in transition planning for children aging
out of foster care and independent living programs .................................. 264

While many of these provisions are clearly related to Medicaid expansion, almost as many are clearly not related to  a "new program" and are merely modifications of the existing program. Or consider these sections of ACA that relate to the existing Medicaid program:
Subtitle D—Patient-Centered Outcomes Research
Sec. 6301. Patient-Centered Outcomes Research ......................................... 664
Sec. 6302. Federal coordinating council for comparative effectiveness research
............................................................................................................. 685

Subtitle E—Medicare, Medicaid, and CHIP Program Integrity Provisions
Sec. 6401. Provider screening and other enrollment requirements under
Medicare, Medicaid, and CHIP .................................................................... 685
Sec. 6402. Enhanced Medicare and Medicaid program integrity provisions
............................................................................................................... 691

These provisions certainly do not relate to Medicaid expansion. The chief justice wrote:
Today’s holding does not affect the continued application of §1396c to the existing Medicaid program. Nor does it affect the Secretary’s ability to withdraw funds provided under the Affordable Care Act if a State that has chosen to participate in the expansion fails to comply with the requirements of that Act.
What parts of ACA are part of "the existing Medicaid program?" The chief justice does not say. Here comes the chaos.

Beyond that, what the federal government can do in the face of a state's rejection of "Medicaid expansion" is also not clear from the opinion of the Court, and the ACA itself is not particularly clear on this point. One of the more interesting issues is whether ACA permits the federal government to "federalize" Medicaid expansion in those states where the program's expansion is rejected. One of the areas where federal action in the face of the intransigence of states is expressly provided for is in the area of the creation of insurance exchanges. Section 1311(b)(1) of ACA reads:

(1) IN GENERAL.—Each State shall, not later than January 1, 2014, establish an American Health Benefit Exchange (referred to in this title as an ‘‘Exchange’’) for the State that— (A) facilitates the purchase of qualified health plans;
(B) provides for the establishment of a Small Business Health Options Program (in this title referred to as a ‘‘SHOP Exchange’’) that is designed to assist qualified employers
in the State who are small employers in facilitating the enrollment of their employees in qualified health plans offered in the small group market in the State; and (C) meets the requirements of subsection (d).
This is the provision wiht which Rick Scott and other Republican governors have vowed not to comply.

What happens if states do not cooperate? Then the federal government can set up insurance exchanges available in that non-cooperating state:

The Secretary of Health and Human Services (HHS) will establish exchanges in states that do not create their own approved exchange.
What does a federal insurance exchange have to look like? What can it look like? Can it include Medicaid expansion for eligible individuals? Can this "public option" be a part of such federal exchanges? Is this an opportunity to "federalize" Medicaid, at least in those states resistant to it?

I'll look at these questions in Part 2.    

Originally posted to Daily Kos on Sun Jul 08, 2012 at 11:15 AM PDT.

Also republished by Discussing The Law: TalkLeft's View On Law and Politics.

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Comment Preferences

  •  Hotlisted (28+ / 0-)

    could you try to be more superficial in order to save me the time for close reading?  

    Thanks for the diary -- hoping I don't have to strenuously disagree with some point or other.

    Vi er alle norske " My faith in the Constitution is whole; it is complete; it is total." Barbara Jordan, 1974

    by gchaucer2 on Sun Jul 08, 2012 at 11:25:08 AM PDT

    •  He did (11+ / 0-)

      It could be far worse.

      Blame Congress for writing such an absurdly complicated law.

      The GOP is the party of mammon. They mock what Jesus taught.

      by freelunch on Sun Jul 08, 2012 at 11:31:55 AM PDT

      [ Parent ]

    •  It's not easy (26+ / 0-)

      to make it easy to understand.

      I'll try to do so on the solutions part of this - which will be Part 2.

      •  Thank you for helping me understand. (12+ / 0-)

        I read everything I can on this, but my brain is still all amuddle.

        Just when I think I got it, my brain gets the equivalent of a body slam.

        Looking forward to part 2.

      •  Thanks for the write-up, Armando.. (5+ / 0-)
        Recommended by:
        joynow, cocinero, mkor7, Quackerz, cacamp

        You did as good a job as can be expected of simplifying this stuff.

        I read this with great interest in light of Dahlia Lithwick's latest post wondering why democrats don't get outraged by high court defections from so-called liberal judges like Kagan when they rule as she did here:

        In contrast to all the weeping and wailing that has accompanied what appears to be John Roberts’ single significant defection since joining the court, liberals have been strangely silent—as they are always strangely silent—about the myriad ways in which the liberal justices have disappointed them this term. Oh sure, we get a little eye-roll from Elizabeth Warren over Justice Elena Kagan’s vote in the Medicaid expansion part of the Affordable Care Act cases. But looked at in its entirety, the 2011 term was yet another festival of defections by assorted members of the so-called liberal wing.
        •  I suspect a lot of this... (3+ / 0-)
          Recommended by:
          Quackerz, cacamp, Odysseus

          ...asymmetric reaction has to do with expectations.

          Generally, by the time the decision came down, most people expected the mandate to be struck down, and possibly the entire PPACA in its wake.

          The creative decision and alignments were a complete surprise, but the PPACA survived relatively unscathed. This was a surprising relief to many who wanted it upheld and a surprising disappointment to many that didn't. I think people who are surprised by things not being as bad as they feared are less likely to be critical than those who are surprised by things being much worse than they expected.

          As well, the Medicaid expansion was not ruled unconstitutional, just the stick. The carrots are still there and will probably bring around all or most of the states eventually -- everyone likes "free" money. Besides, it's difficult to explain to your state's voters that "Yes, you are paying taxes for expanded Medicaid but you, your family, and your neighbor can't get those benefits because I'm throwing a temper tantrum".

          In any event, the next round of battles will be interesting. Suddenly the sleeper issue (the IRS rules that ignore the clear wording of the PPACA and grant subsidies to some of those going to the Federal exchange because their state didn't offer an exchange) that has been brewing for the past six months or so will be front and center. Although, that probably won't be ripe for judicial review for two years at least.

          (As a complete off-topic aside... Does anyone know how a family eligible for a larger subsidy will be able to buy insurance in order to qualify for the subsidy? Isn't the subsidy recoverable at the end of the tax year while, presumably, the insurance bill is due up front or in installments during the tax year? If so, where is the low income family supposed to get the money for the premiums the first year? Am I missing something, I've not looked much at those facets of the PPACA).

          •  Advanceable premium credits via exchanges (3+ / 0-)
            Recommended by:
            RainyDay, WillR, Esjaydee

            is the answer to your question.

            "Provide refundable and advanceable premium credits to eligible individuals and families with incomes
            between 133-400% FPL to purchase insurance through the Exchanges. The premium credits will be tied
            to the second lowest cost silver plan in the area and will be set on a sliding scale such that the premium
            contributions are limited to the following percentages of income for specified income levels."

            See the Kaiser summary:


        •  simple answer is because it wasn't reported (0+ / 0-)

          the headline was the ACA was upheld, everything else was ignored by all concerned.

          America could have chosen to be the worlds doctor, or grocer. We choose instead to be her policeman. pity

          by cacamp on Sun Jul 08, 2012 at 08:58:28 PM PDT

          [ Parent ]

          •  Simpler answer: (0+ / 0-)

            There is only one true liberal justice on the court:  Ruth Bader Ginsburg.  If President Obama is re-elected, we can be assured that other "centrists" will be nominated to the bench...which is a damn sight better than what would be nominated by Romney.

            I hate having to choose between "not quite enough" and "nothing at all."

            "In this world of sin and sorrow there is always something to be thankful for; as for me, I rejoice that I am not a Republican." - H. L. Mencken

            by SueDe on Mon Jul 09, 2012 at 01:12:57 PM PDT

            [ Parent ]

      •  I hope your "solutions" explanation (0+ / 0-)

        will describe how any sections of this opinion can be implemented if the Republicans in the House remain in control and refuse to allocate any funding for those sections' execution.

        "In this world of sin and sorrow there is always something to be thankful for; as for me, I rejoice that I am not a Republican." - H. L. Mencken

        by SueDe on Mon Jul 09, 2012 at 01:07:23 PM PDT

        [ Parent ]

    •  While the tea bag Governors may block... (6+ / 0-)

      the expansion of Medicaid today, they will not be in office much longer.  Sooner or later a more enlightened Governor will be elected that will accept the funds and the expansion of Medicaid.

      Once it is in place, future officials will never be able to return to the tea bagger position.  The program will just be too popular.

      Let them show themselves to be the clowns and fools that they are.

      I screwed up with a careless uprate so I'm a "No Rate" pariah. When I give a comment "+1 n/t", please consider that a recommend. (That's my workaround to participate here). Roar louder!

      by Josiah Bartlett on Sun Jul 08, 2012 at 01:17:39 PM PDT

      [ Parent ]

    •  That would be far easier to understand (11+ / 0-)

      And with expansion of coverage -- particularly for long term care -- it would help the elderly as well.

      The GOP is the party of mammon. They mock what Jesus taught.

      by freelunch on Sun Jul 08, 2012 at 11:32:41 AM PDT

      [ Parent ]

      •  Bill already before Congress worth supporting (12+ / 0-)

        until we get it passed....

        How did Supreme Court decision ACA help the 23 million still uncovered? Ask the 18,000 Doctors of PNHP -- they're not waiting, FORWARD now to pass H.R. 676, the “Expanded and Improved Medicare for All Act .

        by divineorder on Sun Jul 08, 2012 at 11:47:00 AM PDT

        [ Parent ]

      •  Certainly (14+ / 0-)

        But what we have is ACA and the best part of that is Medicaid expansion.

        I'm hoping to offer a thought process on how that can be salvaged as best as possible.

        •  Beating a Dead Horse (13+ / 0-)

          The ACA is a very poor substitute for Single Payer.   The politics of Medicaid Expansion will not be pretty.  As far as the Exchanges, take a look at Massachusetts it's full of fail.  All of this technocratic wizardry and we will still have mass medical bankruptcy and wildly different standards and levels of care.  Universal health care for all was and is the only way to get there and this ACA is going down the wrong trail.

          •  Top comment. (3+ / 0-)
            Recommended by:
            Paper Cup, Nada Lemming, james321

            How did Supreme Court decision ACA help the 23 million still uncovered? Ask the 18,000 Doctors of PNHP -- they're not waiting, FORWARD now to pass H.R. 676, the “Expanded and Improved Medicare for All Act .

            by divineorder on Sun Jul 08, 2012 at 01:34:14 PM PDT

            [ Parent ]

          •  The best part of the ACA... (3+ / 0-)
            Recommended by:
            Jakkalbessie, james321, freelunch

            Is requiring insurers to spend 80% of their income on patient care.  The insurance industry will soon find itself without unlimited wealth to fight reform with.  If we hold the line, we will in time see the whole for-profit industry either fail outright, or convert to co-operatives.  

            Workers of the world, unite! You have nothing to lose but your shackles. It is by the picket line and direct action that true freedom will be won, not by electing people who promise to screw us less than the other guy.

            by rhonan on Sun Jul 08, 2012 at 03:02:49 PM PDT

            [ Parent ]

            •  Keep the Faith! (3+ / 0-)
              Recommended by:
              james321, cocinero, RenMin

              We could have had universal coverage with everyone getting health care.  The ACA is about insurance, not health care.  Just a few miles from my house near Canada, everyone there is covered.  It works out to about $3,000 per person covered.  Enrolled persons pay the maximum rate of $64/month for a single person, $109/month for a couple, and $121/month for a family of three or more.  The balance is from collected taxes.  The same standard of care applies to all regardless of class or income.
              You would think having just one payer would be much more efficient than dozens of sharks posing as insurance companies.  Marketing costs and administrative costs of denying coverage are gone.  80% on patient care is still just a joke the way the system is gamed.  Then you still have millions of folks with substandard care or no care.
              Prescription drugs made in the USA cost 1/4 to 1/3 of the cost here in the States.  Of course, Obama cut the deal to prevent us from bringing them home.

            •  80% is "best"? Try worst. (1+ / 0-)
              Recommended by:

              That should have been 90-95%.

              -7.75 -4.67

              "Freedom's just another word for nothing left to lose."

              There are no Christians in foxholes.

              by Odysseus on Sun Jul 08, 2012 at 10:01:32 PM PDT

              [ Parent ]

          •  Universal coverage does not (0+ / 0-)

            necessarily mean single payer.  Many European countries have universal coverage via insurance handled by private companies.  The difference is that these private insurers are all non-profit (by European definition, not ours), and are very heavily regulated by the state.  Regulation of anything in the U.S. tends to be, at best, a hit-and-miss proposition, and enforcement is highly dependent on who controls the Executive branch.  Also complicating the situation is the need for funding the enforcement, which depends on which party controls congress.  Somehow European systems don't have those problems.

            "In this world of sin and sorrow there is always something to be thankful for; as for me, I rejoice that I am not a Republican." - H. L. Mencken

            by SueDe on Mon Jul 09, 2012 at 01:22:04 PM PDT

            [ Parent ]

    •  Yes, I agree. Medicare is so popular that (5+ / 0-)

      will be a win for Dems.

      How did Supreme Court decision ACA help the 23 million still uncovered? Ask the 18,000 Doctors of PNHP -- they're not waiting, FORWARD now to pass H.R. 676, the “Expanded and Improved Medicare for All Act .

      by divineorder on Sun Jul 08, 2012 at 11:46:35 AM PDT

      [ Parent ]

      •  At least, Medicare as a public option (3+ / 0-)
        Recommended by:
        james321, cocinero, freelunch

        I think Alan Grayson introduced a bill that would let anyone buy in.  It was less than a page long.  Of course, if it had included all the laws and rules that comprise Medicare, it would have been hundreds of pages at least.  
        The Affordable Care Act reinvents the wheel, badly, but it's better than nothing.

        We're all pretty strange one way or another; some of us just hide it better. "Normal" is a dryer setting.

        by david78209 on Sun Jul 08, 2012 at 02:28:42 PM PDT

        [ Parent ]

    •  That would be so much easier (3+ / 0-)
      Recommended by:
      james321, cocinero, mkor7

      No forms to fill out to prove your income, especially for those that hover between levels that get help and those that don't.

      On the borderline there is a constant worry about whether you are going over or not, and if you do then how many other forms you will have to fill out, and if you go back down then you have to start things all over again.

      Medicare for All would solve that, because everyone would be on the same thing, regardless of income. Talk about saving money, energy and time!

      Women create the entire labor force.

      by splashy on Sun Jul 08, 2012 at 02:14:27 PM PDT

      [ Parent ]

      •  There probably would still be forms to (3+ / 0-)
        Recommended by:
        james321, cocinero, RenMin

        determine income
        Even retired people pay a monthly premium for medicare. Low income participants get subsidized, high income ones pay more than the norm, those who don't quite qualify buy in at a much higher cost.

        Medicare is suppose to pay for itself. It would actually be helped by a larger and younger pool, it would become less expensive... but I doubt everyone getting the same thing could mean people paying the same thing.
        Medical offices would sure appreciate having just one set of forms and codes.

        In Europe many go through private (but always non-profit) insurance. The premiums are paid in various ways but many pay a fixed percentage of their income toward the cost (as do employers), so not everyone pays the same even though the basic coverage they get is the same. (Premium services can be bought at higher cost)
        But mostly money goes to the government which then pays the insurance companies who then pay the costs.
        The much lower costs than we have here.

        It would still be the best idea to offer Medicare for all... at least as an option. But Dems couldn't even handle the uproar when they were trying to make the payments of public option be Medicare plus 10%.

  •  You can't have analysis (3+ / 0-)
    Recommended by:
    Armando, Sychotic1, david78209

    without "anal." Ok, bad joke.

    But I am a bit distressed that the talk-storm never suggests a pro-active solution. I don't know if it is more important to ferret out the "harbingers"--that can go on and on-than to come up with a preventive strategy.

  •  Actually, I don't agree -- there was no (4+ / 0-)
    Recommended by:
    Armando, Seneca Doane, Sychotic1, JanL

    concurrence with the judgment of the court by the four dissenters, so there isn't a majority opinion.  In any case, the courts are in no position to take over management of the Medicaid system, so the Roberts position, as the diary notes, is almost unworkable in practice.

    You have exactly 10 seconds to change that look of disgusting pity into one of enormous respect!

    by Cartoon Peril on Sun Jul 08, 2012 at 11:28:23 AM PDT

  •  Considering this (12+ / 0-)

    ... in tandem with shanikka's inaugural FP entry on the success of Grover Norquist's "drown it in a bathtub" vision on the state and local level conjures up some bleak scenarios for the near future.

    I really appreciate your writing on this topic.  Helpful in understanding it all.  We're still glad it's been upheld, since Hobbs gets to keep his pre-existing condition pool coverage instead of reverting to uninsurable status, at least for the time being.  But there are, indeed, more than a few problems looming on the horizon given the present composition of the Court.

    Grab all the joy you can. (exmearden 8/10/09)

    by Land of Enchantment on Sun Jul 08, 2012 at 11:28:34 AM PDT

  •  The argument that must be made: (25+ / 0-)

    All modifications of coverage to those who currently qualify for medicaid must be undertaken by states to keep getting their current coverage.

    Congress has long been allowed to update requirements to keep the money rolling (see helmet laws, speed limits and 21 drinking age). There is no valid reason for the Court to change the rules on how Congress can affect current qualification.

    States, in their foolish war on local hospitals may choose to reject the funding for expansion to 133%, but they may not reject any reforms that are otherwise part of the current, smaller coverage.

    I agree that Roberts, in writing the majority and minority opinions, made a complete mess of this decision, but the Administration needs to act as if he was doing this in a way that was consistent with past Court decisions and construe the limitation as narrowly as possible.

    The GOP is the party of mammon. They mock what Jesus taught.

    by freelunch on Sun Jul 08, 2012 at 11:30:54 AM PDT

    •  You got it (22+ / 0-)

      plus I want to offer a legal solution on "federalizing" Medicaid expansion on those states that do not accept Medicaid expansion.

    •  Not being a lawyer... (14+ / 0-)

      ... I find this opinion completely incomprehensible.  Medicaid is a complete and holistic Federal program, and Congress can write its rules and regulations as it wishes, I should think.  So what SCOTUS thinks about this piece or that one is interesting, but what's to prevent Congress from going ahead by incorporating the "expansion" as part of its normal appropriation for Medicaid and erasing the line Roberts claims to see?

      It sounds as though Roberts is inserting the court far inside normal legislative functions, with a threadbare and legally nonsensical figleaf of a justification.  Having read the diary twice now, I wonder what I'm missing?

      Civil disobedience is not our problem. Our problem is civil obedience. --- Howard Zinn

      by Dallasdoc on Sun Jul 08, 2012 at 11:52:03 AM PDT

      [ Parent ]

      •  The problem is (9+ / 0-)

        some state will sue and then what happens? 7 justices signed on to the absurd proposition on Medicaid expansion.

        This is an utterly indefensible decision on this point.

        •  It's hard to see where SCOTUS has jurisdiction (6+ / 0-)

          It's plain meddling in normal legislative affairs.  If they can nitpick about the details of programs, that's verging so far into normal legislative business it's hard to see where separation of powers remains.  Congress has a case to make for simply ignoring SCOTUS' writs in a matter such as this, and refusing to disburse money except in accordance with the laws it passes.

          Marbury cannot extend infinitely over all details of government business.  A decision like this one, if pressed, could lead to the mother of all constitutional crises.

          Civil disobedience is not our problem. Our problem is civil obedience. --- Howard Zinn

          by Dallasdoc on Sun Jul 08, 2012 at 01:06:24 PM PDT

          [ Parent ]

      •  The implication of your position is that (1+ / 0-)
        Recommended by:
        Ice Blue

        it would simply be an "expansion of an existing program" if it eligibility went up to 200% of FPL, or 2000%, or 20,000%.  I think that there's a cogent argument that it becomes something different at that point -- at which point it becomes an exercise of where to draw the line.

        Let's approach it from the other direction: do you think that Medicaid would still be a "complete and holistic Federal program" if it were expanded to include veterinary care and pets were made eligible?  Taking your statement literally, you would think that this would be nothing new, just the same old Medicaid.

        Pro-Occupy Democratic Candidate for California State Senate, District 29 & Occupy OC Civic Liaison.

        "I love this goddamn country, and we're going to take it back." -- Saul Alinsky

        by Seneca Doane on Sun Jul 08, 2012 at 01:05:13 PM PDT

        [ Parent ]

        •  Medicaid is what Congress says it is (7+ / 0-)

          If it chose to give Medicaid for All, what's to stop it from doing so?  Your veterinary care argument sounds like the kind of slippery slope we've heard from opponents of marriage equality, so I won't address it.

          Who are the SCOTUS justices to pick and choose from among parts of the Medicaid program, deciding where the line must be drawn on eligibility on Constitutional grounds?  Will they decide that wheelchairs may not be covered, or that in-home oxygen is constitutional but portable tanks are not?  The separation of powers argument could come back to bite Roberts in the ass if he presses it too far.

          Civil disobedience is not our problem. Our problem is civil obedience. --- Howard Zinn

          by Dallasdoc on Sun Jul 08, 2012 at 01:09:28 PM PDT

          [ Parent ]

          •  Yes, really (2+ / 0-)
            Recommended by:
            Brooke In Seattle, Dallasdoc

            this part of the decision made zero sense to me. I am not a lawyer. But Congress enacted Medicaid and they can change the rules for it, I would sure think. The tax argument and the Commerce Clause argument could have plausibly gone the other way, but this one just seems out of bounds for the Court.

            •  SCOTUS can examine Medicaid rules (6+ / 0-)

              ... where there are clear and compelling constitutional issues.  If, for instance, it discriminated against classes of people in ways that violate the 14th Amendment.  But to simply decide that states can pick and choose what parts of a Federal program they want to participate in, in contravention of Congress' rules in passing that program, is an extension of judicial activism that begs for Congressional pushback.

              Civil disobedience is not our problem. Our problem is civil obedience. --- Howard Zinn

              by Dallasdoc on Sun Jul 08, 2012 at 01:30:40 PM PDT

              [ Parent ]

          •  The point of the veterinary care argument is that (0+ / 0-)

            we have to determine what constitutes an expansion within the current fundamental nature of the program and what constitutes creation of a new program.  I'll take your refusal to answer my question as acknowledgment that that would constitute a new program and that the label "Medicaid" itself is therefore not wholly determinative.

            Your notion that (to paraphrase) Congress could simply say "OK, now Medicaid includes everyone in the country (I could, after all, say that it goes up to 2,000,000,000% of FPL) and states either have to agree to it or else give up eligibility for any Medicaid payments at all" probably fits with Armando's conception of the interplay between federal and state government, but it would go against law existing prior to the Obamacare decision.  Thirty or forty years ago, one might have gotten away with it; not now.

            As an aside, thank God that lawyers for marriage equality don't share your opinion that there's no need to address slippery slope arguments.  The proper answer to people who say that allowing same-sex marriage entails allowing group-marriage or incest or marrying animals is to point to the language that Anthony Kennedy wrote for the court in Lawrence v. Texas, which says that people have a natural right to seek a single adult human life-partner from a reasonably large pool -- and that is why same-sex marriage does not put us on a slippery slope to these other possibilities.  Refusal to discuss the bounds of one's principle is to invite noble failure -- or, often, ignoble failure.

            Pro-Occupy Democratic Candidate for California State Senate, District 29 & Occupy OC Civic Liaison.

            "I love this goddamn country, and we're going to take it back." -- Saul Alinsky

            by Seneca Doane on Sun Jul 08, 2012 at 01:27:35 PM PDT

            [ Parent ]

            •  So in deciding what constitutes a new program (2+ / 0-)
              Recommended by:
              FloridaSNMOM, mkor7

              Where is the constitutional question in deciding where the boundary of eligibility is for Medicaid, that permits SCOTUS to constrain Congress?  If it decides that Medicaid now extends to 133% FPL, gives states temporary extra assistance in extending Medicaid programs, and doesn't otherwise distinguish the expansion from the original program, who is SCOTUS to say that Medicaid is impermissible where the current one is permissible?  That's the question I just don't get.

              The veterinary care argument I pass over because it is a reductio ad absurdum that has no bearing on any conceivable Medicaid political fight we could see.  Medicaid for All doesn't look all that different from Medicare for All, which the commentary I'd read before the recent decision seemed to hold as much more constitutionally defensible than the individual mandate.

              Civil disobedience is not our problem. Our problem is civil obedience. --- Howard Zinn

              by Dallasdoc on Sun Jul 08, 2012 at 01:35:41 PM PDT

              [ Parent ]

              •  Medicare is administered federally (0+ / 0-)

                Medicaid is administered (at least in large part) by the states.  Therefore, there's no problem with expanding Medicare.  It's only with Medicaid that the problem of coercion of the states by threatening to withhold the existing program arises.

                A reductio ad absurdum just almost killed Obama care.  We are trained to pay attention ot them.

                Your first paragraph asks a good question.  I don't think it's clear and I don't like the Medicaid expansion part of the decision either, I just don't think it's absurd.

                Pro-Occupy Democratic Candidate for California State Senate, District 29 & Occupy OC Civic Liaison.

                "I love this goddamn country, and we're going to take it back." -- Saul Alinsky

                by Seneca Doane on Mon Jul 09, 2012 at 06:14:08 PM PDT

                [ Parent ]

    •  I still don't understand how (0+ / 0-)

      the Court managed to figure that Medicaid expansion as defined in the Act wasn't simply a modification to current Medicaid requirements.  It seems contorted in the extreme to consider an expansion of the current Medicaid program as a "new" program.  Maybe it has to do with not expanding funding for the current program to the level of the "new" program.

      "In this world of sin and sorrow there is always something to be thankful for; as for me, I rejoice that I am not a Republican." - H. L. Mencken

      by SueDe on Mon Jul 09, 2012 at 01:40:49 PM PDT

      [ Parent ]

  •  does the Roberts decision effect people already (3+ / 0-)

    receiving Medicaid?

    I am sure the answer I seek is somewhere in the Diary but I have a Summer 'flu' and can't focus enough to find it... will hot list and keep checking comments and wait for PART 2

    "You've got to be an optimist to be a Democrat, and a humorist to stay one" - Will Rogers

    by KnotIookin on Sun Jul 08, 2012 at 11:32:28 AM PDT

  •  Question: (4+ / 0-)
    Recommended by:
    pollwatcher, Armando, Sychotic1, Chi

    Congress bludgeoned states into adopting the 55 mph speed limit and, especially, raising the drinking age to 21 by legislating a cutoff of funding if states didn't play along.

    So I tak it these are now items in the dustbin of history.

    Thump! Bang. Whack-boing. It's dub!

    by dadadata on Sun Jul 08, 2012 at 11:43:01 AM PDT

  •  "When I use a word, it means exactly what I want (4+ / 0-)
    Recommended by:
    Dallasdoc, Armando, Brooke In Seattle, Chi

    it to mean, nothing more and nothing less."

    - Chief Justice Humpty Dumpty Roberts

    Courage is contagious. - Daniel Ellsberg

    by semiot on Sun Jul 08, 2012 at 11:43:56 AM PDT

    •  Indeed (4+ / 0-)
      Recommended by:
      Armando, TomP, howabout, splashy
      "... There's glory for you."

      "I don't know what you mean by 'glory,'" Alice said.

      Humpty Dumpty smiles contemptuously. "Of course you don't--till I tell you. I meant 'there's a nice knock-down argument for you!'"

      "But glory doesn't mean "a nice knock-down argument," Alice objected.

      "When I use a word," Humpty Dumpty said, in a rather scornful tone, "it means just what I choose it to mean--neither more nor less."

      "The question is," said Alice "whether you can make words mean so many different things."

      "The question is," said Humpty Dumpty, "which is to be master--that's all."

      Alice is so much more sensible than our Chief Justice.

      The GOP is the party of mammon. They mock what Jesus taught.

      by freelunch on Sun Jul 08, 2012 at 11:46:48 AM PDT

      [ Parent ]

  •  General response (21+ / 0-)

    I split this post in 2 parts because I wanted to explain where the legal analysis leads to chaos.

    In part 2, I will try to explain a legal strategy I believe would work for the federal government on 2 counts: (1) having as much of the ACA be deemed to be modifications to the existing Medicaid program and thus binding on the states who want to stay in Medicaid; and (2) "federalizing" the Medicaid expansion through the federally created exchanges.

    I won't lie to you, this is really complicated stuff.

    It is pretty high concept legal matter not easy to translate into laymanease, at least for me.  

    That said, I think it is a BFD  and deserves the thinking.

    •  You Mean the (3+ / 0-)
      Recommended by:
      Ice Blue, Brooke In Seattle, mkor7

      Good old "declarative of existing law" approach? Personally, I appreciate this diary because I'm still trying to wrap my puny little brain around the idea that merely expanding eligibility for a program is "a new program".  (i.e. his analogy that expanding Medicaid to everyone would be a new program - I suspect that what he wanted to say but couldn't say was that it would be new because it would make health care an effective entitlement.  Which of course he couldn't say because that would be answering a different question that was theoretically on the table.)

    •  Sounds good (and workable) to me (0+ / 0-)

      I look forward to being able to agree with that half.

      Pro-Occupy Democratic Candidate for California State Senate, District 29 & Occupy OC Civic Liaison.

      "I love this goddamn country, and we're going to take it back." -- Saul Alinsky

      by Seneca Doane on Sun Jul 08, 2012 at 01:06:57 PM PDT

      [ Parent ]

  •  Rehnquist/Roberts did great damage to the court (9+ / 0-)

    Many of the decisions of these 2 courts were so out of line with precedence and jurisprudence, that many of these will get overturned by future courts.

    I don't for a moment believe the Medicaid decision, and Citizens United, and the decision on the commerce clause will be long lasting.  If Obama gets a chance to replace a conservative judge, they may be more short lived than we think.

    Both these courts will go down in history as a couple of the most shameful and damaging courts we've ever had.

    •  One could argue that it was the Depression Court (4+ / 0-)
      Recommended by:
      Gooserock, pollwatcher, coral, MKinTN

      that was out of line and that the real law is being restored.

      Realistically, the United States has been evolving from a confederation under the Articles, through a federal government to a national government. The first step toward a national government was taken with the Civil War and its aftermath. The second with the economic disaster that gave us the Great Depression and WWII. The question is whether we can roll it back or can continue to move forward.

      Our Constitution is unworkable in some areas. Certain kinds of reforms are not possible without throwing the whole thing out and starting over, but few people trust what such an action would do. The easiest and, to date, best solution is to let Congress drive a tank through the Commerce Clause. Roberts has started to try to roll that back. What does it leave us with? I'm not certain, but I do know that States' Rights are not an option. That has been used too often to use the state to engage in criminal discrimination.

      The GOP is the party of mammon. They mock what Jesus taught.

      by freelunch on Sun Jul 08, 2012 at 12:11:30 PM PDT

      [ Parent ]

      •  Well The Concept of States Sovereignty and Rights (2+ / 0-)
        Recommended by:
        pollwatcher, Chi

        does not exist in the Constitution or amendments, to my layman's text search ability, only the Articles of Confederation.

        As I read it states have powers not rights at all.

        We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

        by Gooserock on Sun Jul 08, 2012 at 12:30:30 PM PDT

        [ Parent ]

      •  But that court has been validated for 70 years. (3+ / 0-)
        Recommended by:
        mkor7, freelunch, MKinTN

        Most of the decisions of that court have been supported by following courts, and were founded in reasoned constitutional interpretation without breaking long standing precedent.  The vast majority of constitutional scholars today are finding many of the Rehnquist/Roberts rulings to be bizarre interpretations of the constitution and in direct violation of long standing precedent.

        Our constitution is indeed unworkable, if it is considered a stagnant document to be forever interpreted in the time frame of the late 18th century.  But if the founding fathers had intended for the constitution to be interpreted for the future times and challenges of the generations that followed them, then occasional amendments should be sufficient for the needs of many generations to follow.  

  •  Endless wars over medical care are going to be (11+ / 0-)

    fought until there is some great moral revolution amongst the rich and powerful determining that making money from the misery of others is not right.

    The wealthy sociopaths want to keep their hands on all the giant money generating levers in our 'health care system' and they won't let go without a fight.   Whatever laws and court rulings are made and put in place, these highly motivated and greedy people will do everything they can to overcome them.  

    I don't see this ending at all, much less ending well.

  •  If they aren't completely disenfranchised (13+ / 0-)

    as voters, perhaps letting the people of those states decide by voting out the conservative Governors.  It would make a very good issue to use in campaigning if the Democratic candidates can see the way to aggressively use it.  By letting it ride and letting the citizens see the consequences of not expanding Medicaid it may be a more solid of support than the Supreme Court nipping away at social changes depending on who is nominated by what President.  This does sound like a Romney plan I realize "let them die, go bankrupt, self deport" but short of holding a gun to their heads this may be the only way to cut the strangle hold Grover Norquist and the conservatives have on the economy.  Democrats need to grab this bone by the teeth and not let go, but will they be able to see outside of their own pockets to represent the citizens who elected them.  We need an uprising of the people to fight the voter suppression and then convince the people to go to the polls, once the people are allowed to speak again and loudly it will be much harder for a few wealthy men to keep their feet on our throats.  

  •  I'm wondering... (7+ / 0-)

    could a bunch of us down here in these red controlled states form a class action against our Governors for denying the expansion of medicaid? Would it be worth it to try? They're counting on us being too poor to be able to do anything, but maybe the ACLU or some Lawyer would pro bono it, or we could pool resources.. maybe a discrimination against the poor lawsuit?

    Any of our legal knowledgeable type community members have an opinion on that?

    "Madness! Total and complete madness! This never would've happened if the humans hadn't started fighting one another!" Londo Mollari

    by FloridaSNMOM on Sun Jul 08, 2012 at 12:03:16 PM PDT

    •  Class action at the ballot box (1+ / 0-)
      Recommended by:

      The Repug Guvvnuhs are caught in a time warp and temporarily insulated from the consequences of their actions, playing exclusively to their equally infundibulated base-units. Time WILL tell but I can't see theirs as a viable option when large swathes of their populations contrast their suffering with the lot of folks in states that choose to comply.

      To quote the great Dr. Johnson;

      Nothing focuses the mind like a hanging.
      Its a loosing strategy adopted by looseres who refuse to admit they've lost and will cut off the noses of any number of their constituents to prove it. Good luck with that.

      Just getting a handle on the knobs and dials.... Hey, don't touch that!

      by Old Lefty on Sun Jul 08, 2012 at 12:40:05 PM PDT

      [ Parent ]

      •  We have to wait two years for the ballot box. (6+ / 0-)

        We have no recall provision. That's two years with people dying because Governor Voldemort doesn't give a damn about anyone who doesn't have millions to ciphen off. A class action and the threat of him having to pay damages for his actions may work towards getting him to accept the funding.

        "Madness! Total and complete madness! This never would've happened if the humans hadn't started fighting one another!" Londo Mollari

        by FloridaSNMOM on Sun Jul 08, 2012 at 12:45:54 PM PDT

        [ Parent ]

        •  I agree but am not (0+ / 0-)

          an Attorney and so cannot opine regarding legalities. I don't mean to be as callous as them, but this is a war and there will be casualties whose mounting numbers will doom their policies from the outset. Too bad so many people who will suffer have been persuaded to vote for their tormentor. I wish those perusing CA the best of luck, but I fear the gears must grind a few more to grist before enough wake up to their self-imposed serfdom to make a difference. And that's the upbeat outcome. IMHO

          Just getting a handle on the knobs and dials.... Hey, don't touch that!

          by Old Lefty on Sun Jul 08, 2012 at 01:28:40 PM PDT

          [ Parent ]

    •  it also seems to me that this (6+ / 0-)

      could be a civil rights issue if the people being denied medicaid by these governors are disproportionately minorities...

      not that the current SCOTUS cares about civil rights at all...

      but still.

  •  stellar explanation & analysis, thanks Armando nt (4+ / 0-)
    Recommended by:
    howabout, Old Lefty, Sychotic1, coral

    Macca's Meatless Monday

    by VL Baker on Sun Jul 08, 2012 at 12:12:54 PM PDT

  •  please look up the meaning of (1+ / 0-)
    Recommended by:
    Brooke In Seattle

    "To beg the question".

    I hate to be a pedant but this particular misuse is an irritant for me.

    Other than that, a superb diary!

    I know you believe you understood what you think I said, but I'm not sure you realize that what you heard is not what I meant. -- S.I. Hayakawa

    by tapu dali on Sun Jul 08, 2012 at 12:23:15 PM PDT

  •  aren't federal highway funds (6+ / 0-)

    tied to 21 year old drinking age? doesn't this open the door completely for assertions of state rights?

    The cold passion for truth hunts in no pack. -Robinson Jeffers

    by Laurence Lewis on Sun Jul 08, 2012 at 12:32:32 PM PDT

  •  !@#$% I have a future to plan! (6+ / 0-)

    This has been so maddening. I bet I am not the only one here whose life is still in a holding pattern. One future has me spending money more freely, participating more in my local community and economy, working on my house, enjoying my aging friends while they are still around and possibly opening a business. The other has me not spending a dime and continuing to live in dread of the future. I'm still uninsurable with pre-existing conditions (that are not expensive to treat if monitored well and consistently) but still at the mercy of a red state, it seems. Thanks for the updates.

  •  Socialist Red States Want Blue State Wealth..... (2+ / 0-)
    Recommended by:
    Sychotic1, freelunch

    ....with no strings attached!

    There’s always free cheddar in a mousetrap, baby

    by bernardpliers on Sun Jul 08, 2012 at 12:37:15 PM PDT

  •  This is great (2+ / 0-)
    Recommended by:
    coral, divineorder

    and very helpful.  Thanks, Armando.  Looking forward to part 2.

    "Justice is a commodity"

    by joanneleon on Sun Jul 08, 2012 at 12:53:25 PM PDT

  •  begs the question (1+ / 0-)
    Recommended by:
    Brooke In Seattle

    Doesn't mean asks a question. I would have thought a lawyer wouldn't make that error since begs the question is a rhetorical term with a specific and unique meaning. Sigh.


  •  Could you explain (0+ / 0-)

    (and maybe you will in the next diary, or maybe you did and I just don't understand it) what the states are talking about when they say that there are many people who are already eligible for Medicaid who haven't yet signed up for it, and their enrolling will cost too much money to allow....something. Maybe to allow the rest of the newly eligible to also enroll?

    I'm so confused about that.

    "The difference between the right word and the almost-right word is like the difference between lightning and the lightning bug." -- Mark Twain

    by Brooke In Seattle on Sun Jul 08, 2012 at 01:13:19 PM PDT

  •  How About UN-American HealthCare? How about (1+ / 0-)
    Recommended by:

    figuring out how do deliver HEALTHCARE for 300 million, instead of figuring how to employ thumb twiddling bureaucrats, thieving senior managers, fucking consultants, and fucking lawyers?

    We went to the moon with slide rules ... and it appears all we can do in 'health' care is employ assholes wearing drapes to decide who gets a band aid, who gets an aspirin, and who gets a fat paycheck doing fucking lawsuits.

    Could the droolers of Limbaugh world invent a more fucked up greater disaster system?


    Yond Cassius has a lean and hungry look; He thinks too much: such men are dangerous

    by seabos84 on Sun Jul 08, 2012 at 01:17:39 PM PDT

  •  Roberts' expansive "expansion" language: foisting? (2+ / 0-)
    Recommended by:
    JanL, cocinero

    Armando nailed it. Here's C.J. Roberts' opinion (citations removed):

    "The States contend that the expansion is in reality a new program and that Congress is forcing them to accept it by threatening the funds for the existing Medicaid program. We cannot agree that existing Medicaid and the expansion dictated by the Affordable Care Act are all one program simply because “Congress styled” them as such. If the expansion is not properly viewed as a modification of the existing Medicaid program, Congress’s decision to so title it is irrelevant."

    Why "cannot" SCOTUS agree? "[T]he expansion is not properly viewed ..." C.J. Roberts declares, and then he is extraordinarily imprecise in what that "expansion" constitutes.

    It seems to me what Justice Roberts doesn't like is broadening Medicaid. He views that as not a "permissible modification of Medicaid" but "... an attempt to foist an entirely new health care system upon the States." Whow! Medicaid is undeniably constitutional, but to broaden or expand it - somehow an impermissible foisting.

    It's Congress's policy choice that's not thinkable to those justices. And last time I read the cases, which policy and mechanics Congress chose was what the Court wasn't supposed to decide. Constitutional powers, Yes. Policy as such, No.

    Obama and strong Democratic majorities in 2012!

    by TRPChicago on Sun Jul 08, 2012 at 01:43:25 PM PDT

    •  Get rid of the state participation (0+ / 0-)

      The best thing the feds could have done at the beginning of 2009 for the states, was nationalize medicaid. That is still a good option. The "state-federal" partnership allows the worst states to indulge the expectations of the worst bigots in their state. Nationalize it and run it under Medicare.

      The GOP is the party of mammon. They mock what Jesus taught.

      by freelunch on Sun Jul 08, 2012 at 05:55:47 PM PDT

      [ Parent ]

  •  Holy moley, is this complicated. I learned a lot (0+ / 0-)

    And my head hurts. So thanks. Ow.

  •  Hospitals Will Lobby Heavily to Expand Medicaid (3+ / 0-)
    Recommended by:
    indie17, Militarytracy, Esjaydee

    They lose a lot of money to bad debt from the uninsured showing up at ERs to get care.  I work for a hospital system in a swing state that loses hundreds of millions of dollars to bad debt for the uninsured each year.

    Medicaid expansion is a way to help close this hole and I fully expect hospitals will exert a ton of pressure on Govs like Jindahl, Scott, etc to opt in.  

    Hospitals are big employers in many of these states and have very powerful lobbies in most state houses.  They will be hard to ignore despite the public posturing.

  •  Is this an opportunity to federalize Medicaid? (0+ / 0-)

    I love the way you think!

  •  I can't wait to see part 2 (0+ / 0-)

    that's because I am interested and I suggested the topic!

    Ok, so I read the polls.

    by andgarden on Mon Jul 09, 2012 at 12:23:03 PM PDT

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