Oct. 8 (Bloomberg) -- The new U.S. Supreme Court term is starting -- but the most significant and telling court news of the term has already happened.
Remember a year and a half ago when the court narrowly upheld the Patient Protection and Affordable Care Act? Turns out, it didn’t -- at least not for the 8 million poor Americans in 26 states who now won’t get coverage as a direct result of the decision. The rollout of Obamacare’s health-insurance exchanges this month has made clear just how far conservative activism has gone to thwart the law’s intent.
At the time of the decision, the headline was that Chief Justice John Roberts had balked at striking down the most important social-policy legislation in a generation. Opting for judicial restraint over activism, he cast the deciding vote to uphold the mandatory-coverage provision of the act, 5-4.
But outside the headlines, Roberts reached a different result with respect to the provision that extended Medicaid to all of the poorest Americans. The way the extension worked, you may recall, was for the federal government to pay 100 percent of coverage for those newly covered until 2016; after that, it would pay 90 percent and leave the extra 10 percent for the states to pay. The incentive structure for the states seemed straightforward: They could provide care for their poorest citizens at 10 cents on the dollar.
To make certain the states would act in their poorest citizens’ interests, Congress made all future Medicaid support conditional for the states accepting the extension: If states refused to extend care to the poorest, they would lose all the federal Medicaid funding to which they had become accustomed.
As a matter of constitutional law, the conditional funding seemed relatively safe. Congress can’t force states to adopt programs they don’t like, and it can’t commandeer their personnel to apply federal law. Traditionally, however, it could set conditions for receiving federal funds. In the 1987 case of South Dakota v. Dole, the court upheld a law that told states to raise the minimum drinking age to 21 or lose 5 percent of their federal highway funding -- after which all recalcitrant states did it.
Roberts thought otherwise. Inventing a new doctrine, he wrote that the potential loss of all Medicaid funding wasn’t a conditional incentive -- it was a “gun to the head” amounting to coercion. Because it was coercive, Congress couldn’t “force” the states to cover 10 percent of the cost of future Medicaid coverage.
The four other conservatives (Antonin Scalia, Clarence Thomas, Anthony Kennedy and Samuel Alito), in their joint opinion, also thought the condition was coercive -- but they were so mad at Roberts they wouldn’t even join a part of his opinion with which they agreed.
Ruth Bader Ginsburg wrote a powerful dissent, joined by Sonia Sotomayor, pointing out that Congress could lawfully repeal Medicaid tomorrow and that there was no real difference between this expansion of Medicaid and the earlier ones that extended the program to “millions of children and pregnant women.” As a parting shot, she noted that “gun to the head” is not a legal standard so much as a metaphor without fixed meaning.
Only two justices joined this section of Roberts’s opinion: Stephen Breyer and Elena Kagan, the court’s two liberal pragmatists. Presumably they didn’t want Roberts to feel so alone that he would lose his nerve to uphold the individual mandate. Perhaps -- just perhaps -- they also thought that states would overcome their aversion to paying even a portion of the cost of insuring the poorest residents, given that 10 percent in perpetuity is actually a pretty good deal.
Fast-forward to 2013. After much speculation about which states would adopt the extension absent the congressional incentive, the results are in: Twenty-six states containing 60 percent of the nation’s working poor aren’t doing it.
The consequences for the aspirations of the health-care law are enormous. While the wisdom of the act’s various mechanisms remains open to serious question, what was always irrefutable was the ethical vision of Obama’s plan: the imperative that in the richest country on Earth, no one should be without medical coverage. It is not just tragic and unequal, but actually absurd as well that the law will now subsidize coverage for Americans well-off enough to buy coverage from the insurance exchanges while doing nothing for people who are too poor to participate.
Usually we think of the poor Latin American countries as the places where government subsidies reach only the middle-class employed, not the desperately needy. Think again: It’s us. Perhaps half a loaf is better than none, but it’s hard to avoid asking: Was it worth all this trouble to produce a program that subsidizes the lower middle class but not the truly poor?
The place to lay the blame is on the Roberts court. The chief justice is highly sophisticated about crafting decisions that make the court look less activist than it is. But in the details, the conservatism comes through.
Upholding part of the Affordable Care Act and striking down other parts creates cut-and-paste legislation that offends common sense. It may be good lawyering, but it is bad statesmanship. And make no mistake about it: A court that crafts and compromises its way through the laws Congress has passed is in the business of politics.
(Noah Feldman, a law professor at Harvard University and the author of “Cool War: The Future of Global Competition,” is a Bloomberg View columnist. Follow him on Twitter at @NoahRFeldman.)
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