Does Congress have to tear down before it can build up?

States are so reliant on Medicaid funding, the reasoning went, that they would really have no choice but to agree to Congress’ desired expansion, and a lack of choice in amending a contract is equivalent to impermissible coercion.

But the “contract” was never an entitlement to permanent funding for the existing Medicaid program. Indeed, it is not difficult to imagine that an item at the top of the Republican agenda should there be a GOP sweep in November would be the ending of the Medicaid program as we know it.

More importantly, the question is one of Congressional authority. It cannot be denied that Congress has the authority to pass the following two-part piece of legislation. In the first part, Congress would end Medicaid and terminate all Medicaid funding as of the end of fiscal year 2013. In the second part, Congress would create and fund Medicaid II (the ACA’s expanded Medicaid program) commencing in fiscal year 2014. Nothing in the court’s recent decision would prohibit this, and states would not be heard to say that they had an entitlement to participate in the old Medicaid program that Congress had scrapped.

As Congress has the authority to end Medicaid, it is hard to imagine how Congress couldn’t have the authority to take the lesser act of modifying Medicaid. As Justice Ginsburg put it, “By what right does a court stop Congress from building up without first tearing down?”

Protecting state officials from the consequences of their actions

Chief Justice Roberts had a remarkably revealing answer to Justice Ginsburg’s question. Going the repeal-and-reenactment route, he said, “would certainly not be that easy. Practical constraints would plainly inhibit, if not preclude, the Federal Government from repealing the existing program and putting every feature of Medicaid on the table for political reconsideration.”

In short, the Chief Justice was entirely unable to deny the existence of Congressional authority to create a “new and improved” (or, in the view of some, “new and even worse”) Medicaid program. His view of what may seem to be “practical constraints” and the risks of “political reconsideration” had nothing to do with defining the scope of Congressional powers: risks and constraints are ever changing as the political composition of Congress changes (prior to 1965, of course, it was not practical to enact a Medicaid program at all).

“I’m going to make Congress take a more difficult — but undoubtedly permissible — route to achieve its goals,” does not have a great ring as constitutional doctrine.

What was actually going on was that the Chief Justice and the joint dissenters are frightened to let conservative state officials face the consequences of their decisions.

Chief Justice Roberts wrote that the threatened loss of funding if a state declined to expand Medicaid was “economic dragooning that leaves the States with no real option but to acquiesce.”

The joint dissenters call forth a parade of horribles including the possibility that a state that turned down the Medicaid expansion would see its citizens paying “huge tax sums to the federal fisc for the sole benefit of expanding Medicaid in other States.” They also sought to guard against the possibility that federal officials, by forcing an unpopular program on state officials, would shift blame for the unpopular action to the state officials.

In truth, even if an anti-coercion rule should exist, none of the foregoing represents coercion or the risk of blurring responsibility.

A state really could “just say no” to Medicaid expansion and thereby risk the loss of all Medicaid funds, however cruel, mean-spirited, and counter-productive such a decision would be. The Chief Justice admitted that “just say no” is the usual recourse states should be expected to take (again revealingly, he characterized this responsibility as a function of states being “separate and independent sovereigns”).   

Such a decision in the particular case would have had serious consequences, of course. If state officials wanted to eliminate current Medicaid-type assistance in the aftermath of a full federal funds cut off, many voters might object. If those state officials wanted to continue such assistance, they would have to raise taxes, a course many other voters might resent.  Voters might also, as Justice Scalia suggested, wonder why it was that their federal taxes were funding an expanded Medicaid program in other states.

But having state officials take responsibility for the choices they make between and among alternatives is the essence of political accountability, just as is the case for federal officials.