Supreme Court Goes Beyond Individual Mandate

November 15, 2011
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The Supreme Court, as expected, will consider the constitutionality of the individual mandate in health care reform. But as Tim Jost, a Washington and Lee University professor of law, noted today on the Health Affairs blog, the high court will also hear arguments on the constitutionality of using Medicaid to expand insurance coverage to people earning up to 138 percent of the poverty line.

The Supreme Court, as expected, will consider the constitutionality of the individual mandate in health care reform. But as Tim Jost, a Washington and Lee University professor of law, noted today on the Health Affairs blog, the high court will also hear arguments on the constitutionality of using Medicaid to expand insurance coverage to people earning up to 138 percent of the poverty line. States are challenging this mandate under what the attorneys general in the 26 states challenging the law call “the coercion theory.” Noted Jost:

The coercion theory calls into question a multitude of federal government programs.  Many federal programs, and not just health care programs, operate through conditional grants to the states.  Were the Supreme Court to hold that the Medicaid expansions are unconstitutional, it would open every one of these programs to judicial challenge.  New programs, or changes in existing programs, could be tied up for years as litigation proceeded.  Such as decision could pose a much greater threat to the power of Congress to address national problems than might a decision holding that Congress exceeded its authority under the Commerce Clause in enacting the individual mandate. It would be a truly radical decision.

I don’t know that this cases yet rises to the level of a Dred Scott decision for the 21st century. But its framing by the states challenging the law has all the hallmarks of the southern states that challenged the 1964 civil rights act, claiming states had the right to nullify federal laws that prohibited local laws condoning segregation, impeding voting and the like. The stakes in this spat over the individual mandate have suddenly grown significantly larger.