PPACA - Spending Power / Medicaid Expansion

Conkle, Daniel O. conkle at indiana.edu
Fri Feb 3 13:07:46 PST 2012


Yes, I think Rich is correct to note that the connection here is much closer than in Dole, and that's a point in the law's favor.  In terms of Chief Justice Marshall's "means" and "ends" language in McCulloch v. Maryland, we might say that this law is much better "adapted" to the legitimate congressional end of spending Medicaid dollars in pursuit of the "general welfare."

But I'm not sure that this closer connection answers the state sovereignty/coercion argument.  If the state governments are being coerced to make or enforce federal law, even if the coercion is related to an otherwise valid federal objective, the coercion is barred by the anti-commandeering doctrine of N.Y. v. U.S. and Printz.  Here, although the 11th Circuit upheld the law, it suggested that the issue of coercion depends upon whether the congressional restrictions are "so burdensome and threaten the loss of funds so great and important to the state's integral function as a state-funds that a state has come to rely upon heavily as part of its everyday service to its citizens-as to compel the states to participate in the 'optional' legislation."  Here, as David suggests, for a state to *comply* with the new terms by expanding Medicaid arguably is not that costly to the state and does not intrude too deeply on its "integral function as a state."  Conversely, the 11th Circuit's "reliance" language suggests that the states' dependency on a longstanding program may suggest a stronger argument of coercion, presumably because it might make the option of *withdrawal* from the federal program unrealistic and non-viable as a practical matter.  And the Court suggested in Printz that if the anti-commandeering doctrine indeed is applicable, because the state has no choice but to comply, the relative *degree or magnitude* of the intrusion on state sovereignty doesn't matter (unlike under the older National League of Cities doctrine).

Pointing back the other way is a provision in the original Medicaid law of 1965, explicitly telling the states that Congress retains the right to change the rules in the future.  So any reliance by the states in this setting arguably was not justifiable.  Query, is coercion no longer coercion if the states should have known better?

Dan Conkle
************************************************
Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University Maurer School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail conkle at indiana.edu
************************************************

From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Richard D. Friedman
Sent: Friday, February 03, 2012 3:18 PM
To: conlawprof at lists.ucla.edu
Subject: RE: PPACA - Spending Power / Medicaid Expansion

Is it an argument in favor of the legislation that the connection between the required legislative change and the spending is a lot less tenuous than it was in Dole (drinking age and highway dollars)?  It seems to me that if Medicaid were a new program Congress could say, "If you want our money, create the program we want ; you can't create a partial program and get a portion of the money."  I'm not sure Congress should lose that ability just because the program has been around for decades.

Rich Friedman

At 02:34 PM 2/3/2012, Orentlicher, David wrote:

Content-Language: en-US
Content-Type: multipart/alternative;
         boundary="_000_7DA768BE10F736438FDC0C69894B535641BF50F2IUMSSGMBX105ads_"

Very interesting suggestion. I've thought about the Medicaid expansion in terms of the burden on states from the expansion, which isn't so serious given the lead time and the enhanced federal match.

I think the problem with framing it in terms of the loss of all federal Medicaid dollars is that you probably could make that argument about other requirements. There are a fair number of mandatory elements that states have to include in their Medicaid programs. I'm guessing that failure to satisfy those elements would put the state at risk of losing all Medicaid dollars.

________________________________
From: conlawprof-bounces at lists.ucla.edu<mailto:conlawprof-bounces at lists.ucla.edu> [conlawprof-bounces at lists.ucla.edu] on behalf of Conkle, Daniel O. [conkle at indiana.edu]
Sent: Friday, February 03, 2012 2:02 PM
To: conlawprof at lists.ucla.edu<mailto:conlawprof at lists.ucla.edu>
Subject: PPACA - Spending Power / Medicaid Expansion

Having just taught the 11th Circuit?s decision approving the PPACA?s expansion of Medicaid, I?m finding, contrary to my initial inclination, that maybe the spending power issue is not as easy (in favor of congressional power) as I thought.  In Dole, South Dakota was threatened with a loss of *5%* of the state?s federal highway money, which the Supreme Court found to be a relatively small financial inducement that did not rise to the level of impermissible coercion.  Under the PPACA, by contrast, the states *might* face a loss of *all* their federal Medicaid money if they fail to expand Medicaid in accordance with the congressional directive.

In rejecting the 10th Amendment/state sovereignty challenge, the 11th Circuit cites various factors, one of which is that non-complying states *might not* face a loss of *all* their federal Medicaid dollars, because the Medicaid Act gives HH&S the discretion to cut off only a part of the funding if the department so elects.  But I?m not sure how much this helps the argument in favor of federal power, because the lack of certainty in itself would seem to impair a state?s informed decision-making concerning whether or not it wishes to comply with the federal directive.  Cf. Dole?s requirement that funding conditions be clearly stated in the federal law.

Perhaps the 11th Circuit?s other factors are enough to tip the balance in favor of Congress, or perhaps the spending power should not be checked by the judiciary at all.  But I?m beginning to think that the states might have a shot at winning on this.

I?d be interested in other perspectives.

Dan Conkle
************************************************
Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University Maurer School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail conkle at indiana.edu<mailto:conkle at indiana.edu>
************************************************

_______________________________________________
To post, send message to Conlawprof at lists.ucla.edu<mailto:Conlawprof at lists.ucla.edu>
To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof

Please note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.ucla.edu/pipermail/conlawprof/attachments/20120203/f5e23091/attachment.html>


More information about the Conlawprof mailing list