Dahlia Lithwick

by Jeremy Leaming

The Supreme Court’s decision to hear a legal challenge to the Patient Protection and Affordable Care Act includes more than a review of the landmark law’s minimum coverage provision. (That provision has greatly animated Tea Party activists and riled Georgetown University law school professor Randy Barnett, who loudly proclaims that the Obama administration has no limiting principle – if it can force us to purchase health care coverage, then the federal government’s power is boundless, and soon it will mandate the purchasing of broccoli and gym memberships.)

As Simon Lazarus and Dahlia Lithwick write in a recent piece for Slate, the justices will, however, also consider the argument advanced by 26 Republican governors and attorneys general that the ACA’s extension of Medicaid coverage is unconstitutional because the program “coerces” state governments.

They write:

If a majority of the court now leans toward imposing new curbs on Congress’ spending (as opposed to the much-maligned Commerce Clause) power, that could portend changes far more radical than limits on Congress’ regulatory authority to impose the individual mandate. The states’ attack on the ACA’s Medicaid expansion provisions would cripple Medicaid as well as other state-administered programs that are federally funded and supervised. Also vulnerable could be antidiscrimination guarantees prescribed by conditional funding programs such as Title VI of the Civil Rights Act and Title IX of the Education Amendments of 1972, the Age Discrimination Act, the Rehabilitation Act (banning discrimination against people with disabilities) and the Individuals With Disabilities Education Act.  

If the Medicaid expansion were to be called into doubt, major environmental programs that set federal standards but delegate implementation responsibility to the states could wobble as well. Legal challenges and intensified political and bureaucratic resistance to all such programs would become the norm if state governments could get into court to challenge federal conditional funding offers on the ground that they are politically constrained even if voluntary on paper. 

See the entire Slate piece for their thoughts on why the high court decided to take up the lawmakers' strained argument.

Lazarus also addressed the state politicians' legal challenge to the Medicaid provision in his ACS Issue Brief, “The Health Care Lawsuits: Unraveling a Century of Constitutional Law and the Fabric of Modern American Government.”