ObamaCare and Medicaid: Yet More Pre-Argument Argument

Part 1: The War Among the States

All the briefs on ObamaCare’s gargantuan Medicaid expansion are in. I have dealt with the constitutional questions here  and here. Today and tomorrow, a few remarks on the political economy and the politics—in particular, the urgent need for sensible policymakers to prepare for a post-litigation world. The briefs shed a great deal of light on these matters.

Let’s start with an amicus brief by a dozen states in defense of Obamacaid. Its obvious purpose is to refute—by virtue of its submission, and almost regardless of its content—the plaintiff-states’ contention that ObamaCare impermissibly “coerces” the states to accede to the statute’s Medicaid expansion:  how can that be right, when quite a few of them welcome that expansion?

Constitutionally speaking, the probative value of the states’ submission is nil. Some states like to be “commandeered” by the feds. The attorneys general of New York or Iowa might not mind if Congress delegated to them the power to declare war on behalf of the United States. But so what? States  cannot by their consent enlarge the powers of Congress: see New York  v. United States (1992) and Printz v. United States (1997).

The pro-Obamacaid states’ constitutional arguments are merely bad; their pronouncements on the statute’s policy are a menace to a free and prosperous society. The gist is that Obamacaid is nothing new. From its beginnings, Medicaid has incentivized bold, progress-oriented states to cover “optional” populations and services above and beyond the federal mandates. Congress often responded by making those optional services mandatory for all states, while threatening potential opt-out states with a loss of all Medicaid funding.  Obamacaid owes its origin to that same state-demand-driven dynamic, and it has the same structure. It differs only in its unprecedented scale and generosity (as the feds will pay for virtually all of the program expansion).  Far from “coercion,” Obamacaid exemplifies our “cooperative federalism.”

Just so. And in a sane universe, public officials who embrace that form of government would be run out of town on a rail. Over four-plus decades, the cycle described by the pro-ObamaCare states has wrecked state budgets from coast to coast. With or without ObamaCare, Medicaid is on a hopelessly unsustainable path (link no longer available). Not that one would learn this from this gang.

By way of diametrical contrast, Paul Clement’s reply brief on behalf of the plaintiff-states, like his opening brief (link no longer available), presents a powerful indictment of Medicaid’s pernicious incentives. With each expansionary cycle, states get more ensnared, to the point of making an opt-out unthinkable. ObamaCare differs from earlier iterations (the briefs say) because it combines an unprecedented expansion with the individual mandate to purchase health insurance: if a state were to opt out, it would effectively turn poor citizens into lawbreakers. (On this theory, the mandate and the Medicaid expansion should fall together, and the reply brief says so.)

For reasons discussed in my earlier posts, I am skeptical that the plaintiff-states can prevail on this or any other theory of “coercion.”  In a practical sense, however, the more important consideration is the states’ and their lawyers’ devastating critique of Medicaid’s ruinous political economy. That critique will stand, and hopefully gain currency, regardless of the outcome of the litigation: Medicaid is going bust one way or the other. But the plaintiffs’ brief has a further, hugely important merit.

The coalition of plaintiff-states comprises most of the South; Great Plains and Mountain States; and some Great Lakes States (Wisconsin, Indiana, Ohio), along with Pennsylvania and Maine. All those states have consistently attempted to practice fiscal discipline or (like Ohio) recently come to their senses. The pro-Obamacare coalition, on the other hand, is composed of the nation’s leading deadbeats (California, New York, Illinois) and an assortment of Medicaid queens: Oregon, Vermont, Massachusetts, Connecticut, Delaware, Maryland, New Mexico, Hawaii.  And that is the federalism problem at the heart of the Medicaid litigation. The question isn’t about a “balance” between the imperious feds and the virtuous states. It is whether the most irresponsible, spendthrift states can drag the rest from one Medicaid expansion cycle into the next, yet-more ruinous round.

Paul Clement’s briefs suggest the point. But he cannot push too hard on it; he has to argue in the context of a federalism jurisprudence that, in its obsession over the feds’ relation to the “states as states,” is oblivious to the constitutional dimension of conflicts among them. That consideration, however, should loom very prominent in a sure-to-come post-litigation debate over Medicaid’s future. More on that subject tomorrow.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on March 15, 2012 at 11:30:57 am

Hey, what happened to my previous comment?

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on June 09, 2012 at 08:10:48 am

The thing to know about Medicare is that this program is inaucsnre for acute illnesses. This means that if you are enrolled in Medicare Parts A and Part B bills pertaining to procedures that are deemed medically necessary will be paid for. Medically necessary is the most important term. Medicare will not pay for any procedure or care that does not fit in this definition. Yes, Medicare will pay for nursing home care that might be needed by someone who needs care after a hip replacement or after a hospitalization for some other health episode. But, if the doctor determines that there will be no further recovery for a person say someone who just has suffered a stroke Medicare benefits basically end. This is because Medicare does not pay for the costs of day-to-day care if the care will not improve the person's health after the acute health episode. Although there are a few (very few!) exceptions, Medicare generally does not pay for in-home services for elders in their homes,Many and I do mean a whole lot of people I know get Medicare confused with Medicaid. Medicaid is a health inaucsnre program for the poor or medically indigent. Medicaid is only available to folks who meet stringent financial guidelines. If one qualifies for Medicaid and folks at the state level determine this then costs of the nursing home stay will be paid. Many states have in-home care options that may be accessed by elders who are eligible for Medicaid. Medicare and about Medicaid coverage and policies including the one I just mentioned above can be confusing and complicated. Most people want real people to talk to about these sorts of situations. I would suggest that you call your local Area Agency on Aging. Not only can they help you walk through the peculiarities of Medicare and Medicaid, they will know of other resources that might help you in your care-giving situation. And these folks are not selling anything. If you live in the United States or one of the territories, there is one where you live. You can call toll-free 1-800-677-1116 to find out the one serving you. Each Area Agency on Aging has professionals available to answer questions and guide care givers of elders to the best solution for their situation. You will most likely find the people there friendly and very helpful.If you do contact your local Area Agency on Aging and like the help that they give you, let your local county officials and your folks in Congress know, too. Area Agencies on Aging are funded by the Older Americans Act and don't have big budgets for advertising and certainly don't have budgets that support campaign contributions!Thanks for caring! I hope this helps you and your loved one!

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on June 09, 2012 at 13:26:55 pm

This can’t go on forever, and it won’t. A mipaerstece of brevity! The Blue Social Model's fatal flaw captured in eight words.As a recovering progressive, I can say the second step in this recovery program is to recognize that conservatives aren't all selfish, greedy and/or uneducated folks. Many are very well-educated people who have come to understand that the Blue Social Model hasn't actually served the least among us very well.In the early days, it did, via housing codes and laws which protect worker safety, ban child labor, and mandate education. But then it went further and defied what Christians should understand as the law of human nature. That is, we are all flawed, we are all susceptible to temptation, and we always will be. Human beings are not perfectible.To give more aid to single mothers than to married ones as Great Society programs did was to encourage the breakup and, indeed, the prevention of marriages. To give more welfare aid to mothers as they had more babies was to encourage them to have more babies they couldn't support. To give continuous disability aid to addicts as Americans with Disabilities Act aid originally was is to enable addicts to stay addicted.More recently, the effect of the idea of Too Big to Fail is to encourage American financial firms and automakers and recently, large European countries is to enable them to continue self-destructive behavior. Too Big to Fail was never part of the Blue Social Model, but the moral hazard is the same. The more you subsidize unhealthy behavior, the more of it you get.May God grant us the wisdom to dismantle these unhealthy temptations without worsening the plight of the least among us.

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on June 10, 2012 at 05:45:12 am

To control mdiceal costs, patients MUST perceive a cost to their health care. For instance, if everybody had health savings accounts, out of which all of their mdiceal expenses were paid and after which catastrophic coverage progressively kicked in, there would be far less consumption of services, especially if one could keep the money tax free or roll it over. I would have far fewer people in my ER for snotty noses and chronic back pain. It's worked in Indiana and it would work everywhere else. We don't need rationing. We need a free market. (And I'd get paid a lot less, too.)

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Image of Jose
on August 26, 2014 at 11:40:39 am

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Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.