• The heckler’s veto: ACA SCOTUS Briefs

    The amici briefs defending Medicaid were filed Friday. While the minimum coverage provision attracted record numbers of briefs, I’m only aware of 11 briefs defending Medicaid.  (Prior coverage of the anti-Medicaid briefs and the other briefs are here). The highlights:

    The  Hospitals’ Brief is thoughtful, strategic and clever with words. It is a forceful  rejection of coercion doctrine:

    “The “coercion doctrine,” always more a whisper than a doctrine, is unworkable. It also has been overtaken by events: The anti-commandeering principle, developed by this Court in the years since it last mentioned “coercion,” does the necessary work to safeguard federalism.”  (5)

    The best line is when it discusses whether a single state can claim coercion even if the other 49 do not:  “This heckler’s veto flips the Constitution on its head.” (4)

    Blue States – Medicaid eligibility is a “core element” and thus the federal government is free to modify it, leaving implementation to the states:

    “Thus, historically it has been the States, not Congress, that have led the way in expanding eligibility for Medicaid. Medicaid’s flexibility has enabled the States to experiment with different approaches to healthcare policy and become the “laborator[ies]” of democracy once envisioned by Justice Brandeis.  See New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting). When the States’ experiments have demonstrated that extended coverage is effective and practical, then Congress has followed by “raising the floor” to make a wider group of needy people eligible. That is precisely how cooperative federalism should work.” (15)

    Much of the brief focuses on responding to the States’ Brief attacking Medicaid.

    • A careful critique of Medicaid cost estimates (9-14)
    • The delayed implementation until 2014 = time to opt out (22 -24)
    • “This Court has never suggested that Congress may tackle only small problems under the spending power, rather than large ones that require substantial funding” (26)
    • The anti-Medicaid Petitioners theory would freeze Medicaid in time, static, unable to adapt (27)
    • Medicaid is not  coercive because CMS has discretion 30-33 “In short, this Court is not in a position to conclude that the Medicaid expansion is facially unconstitutional without knowing what the Secretary would do in a particular case” (33)

    The Health Law & Policy Scholars Brief (I was Counsel of Record, with an all-star team of Sara Rosenbaum, Sidney Watson, Elizabeth Weeks Leonard, Nicole Huberfeld and Laura Hermer) starts with a detailed program history, showing how each element of the ACA Medicaid expansion has historical precedents (1-16).  The legal arguments focus on coercion, first with an review of the Court’s precendents (16-22) and then with a detailed defense of the specific provisions challenged in Title II, noting that the Petitioners are “unaccountably vague”  (29) concerning the actual provision that is allegedly unconstitutional.

    To merit novel judicial treatment of the Medicaid amendments, Petitioners must demonstrate that whatever they claim is wrong with Medicaid is entirely new and novel. As a baseline, the States’ challenge cannot be understood to assert constitutional infirmity to tried and true features of the existing program. If there is a straw that breaks the camel’s back, it must be constitutionally distinguishable from all previous straws in Medicaid. Petitioners fail in this task. (14, 23)

    The fundamental elements of Medicaid have long been mandatory. While unconditional block grants to States might be a political objective for some Petitioners, it would be a late moment in the history of the Republic to discover that the Constitution requires it. (14, 22)

    The section by section defense of Title II runs from pp. 29-38, including the mandatory expansions, the maintenance of effort provision, the essential health benefits benchmarks, and Section 2304.

    We also noted that millions of Americans were covered by states that have taken advantage of voluntary expansions under waivers or the early adoption provisions of the ACA. In an argument similar to the heckler’s veto from the Hospitals’ Brief, we said:

    The Petitioners, if successful on this issue, seek the freedom to reject the federal offer, but this remedy should not be imposed on other States that willingly accept the Medicaid amendments. The more appropriate remedy “would be to enjoin the ‘application’ of the provision to unconsenting States and otherwise to permit the eligibility extension to function as written.” Gov’t Br. 53 (citation omitted). Any State that wants to continue to access federal funds under the ACA should be allowed to do so, whether or not a sister State alleges coercion. (39)

    If the conservative majority on the Court cannot restrain themselves from making new coercion precedent with the Medicaid expansions, then this paragraph could save Medicaid from going down in flames. Essentially, this calls for only blocking CMS from cutting off all funds from states that fail to expand Medicaid, allowing the other states to continue to operate under the ACA. This could be lemons into lemonade for supporters of the ACA.

    Faith-Based Groups also filed a brief (no copy online yet), with Tim Jost as a co-author, with appropriate quotations from Scripture about caring for the poor and needy, especially the aliens and strangers in your land. Of course, the ACA was forced to deny benefits to undocumented aliens in an attempt to garner some Republican votes. Some Christian legislators should read the Bible more carefully.

    The Disability Rights Legal Center & Cancer Legal Resource Center eschews legal argument, just focusing on the fact that cutting Medicaid would hurt poor, sick people, so the Court shouldn’t do it.

    The National Health Law Program’s brief corrects the factual record, showing the ACA isn’t really that different from prior Medicaid expansions.  Good overview, followed by a detailed history of program expansions.  Most of the expansion was from states voluntarily adding benefits, so these states should not now be allowed to complain.  Another Brandeis brief, without much legal argument.

    KO

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    • Kevin
      Need more schooling…

      Given the undisputed smarts of the justices, do these briefs serve to enlighten or shed new light for any of them ? Or like mere mortals, they recognize all the arguments (again, the smarts thing), and excise those that counter their constitutional worldview, and use the agreeable remaining to reinforce what they already believe is true?

      Another take: these briefs mollify the masses and followers of those who right them, but in the end, do little.

      Brad

      • Many of the briefs have no novel points in them. For the actual Court case, they are a waste of electrons and paper. Nice PR for their funders, perhaps; exciting the base, but legally irrelevant.

        I’ve tried to highlight the briefs that actually say something new. Most of these briefs are trying to sway the Justices in the middle, esp. Kennedy.

        So 150 amicus briefs @ $50,000 each (law firm price) – was it worth it? We’ll see if any argument from an amicus ends up in the oral arguments or one of the opinions.