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

There is not an anti-ACA governor, state legislator, or media outlet who has not and will not make plain to every person within earshot that any and all costs associated with ACA provisions — including Medicaid expansion — are traceable to federal officials.

If the court had not interfered, state officials could have made decisions as they saw fit, and voters everywhere could, as usual, decide how to apportion credit and blame.  Some — one would hope most — would reject the every-person-for-himself and every-state-for-itself view, along with the politicians who espouse such views. Whether they did or not, substitution of the court’s will for that of the people — either as expressed through the Congress (which did, after all, pass the ACA, practical obstacles notwithstanding) or directly through the ballot box — is the dictionary definition of the judicial activism that Chief Justice Roberts and most of his colleagues profess to abhor.

The more important the issue to Congress, the more restrictions

One particularly perverse impact of the ruling is to make it more difficult for Congress to enlist state cooperation through the use of the power to spend for the general welfare precisely when Congress determines an issue to be of great national importance.

The joint dissenters spilled much ink discussing what they described as the expectation that all states would go along with Medicaid expansion rather than risk the loss of all Medicaid funding. That, to them, was evidence of coercion.

But it would not be surprising that the problems that Congress determines to be the largest would be the problems to which Congress devotes the greatest resources.

In the judicial version of Alice in Wonderland put forward by a majority of justices, however, it is only where the stakes are relatively low that Congress will be able to “conscript” states — because states wouldn’t have any problem saying “no.” Where Congress has identified issues as being of greatest national concern, on the other hand, and especially when Congress determines that a problem already identified as significant is even worse than originally realized and demands more resources, there the justices believe that the hands of Congress should be tied.

Another front in an ongoing war

Some people may take perverse comfort in imagining the ACA case to be just an anomaly, like Bush v. Gore, where the Court’s stated rationale was simply cover for the result it wanted to achieve (the Bush court didn’t really want anyone taking its equal protection analysis seriously: it explicitly said that its consideration was “limited to the present circumstances,” or, to translate, “this case is just different”).

But trying to exalt the states to a status of equal and independent sovereigns on par with the federal government has been a longstanding project of right-wing justices — despite the previously quoted Supremacy Clause of the Constitution.

In 1996, the Supreme Court tried to dress up a decision shielding states from lawsuits by personsw or entities injured by a violation of federal law by claiming that the 11th Amendment had always been seen as permitting only the federal government to sue states for federal law violations. But that decision — Seminole Tribe of Florida v. Florida— was, in fact, the very first time the Supreme Court — ignoring the fact that the shield was nowhere to be found in the actual language of the 11th Amendment — had so ruled.

Seminole Tribe involved the Indian Gaming Regulatory Act, but in short order, the Court was using Seminole Tribe as a weapon to limit the right of individual citizens from suing states for federally-prohibited age and disability discrimination. 

Here, too, what may seem today as a ruling having to do with the “unique” circumstances of the ACA is likely to be deployed again and again, with deference and coercion the code words used to thwart the will of Congress as to a wide range of matters affecting the general welfare.