This afternoon's session centered around the Medicaid expansion and whether it was coercive for the Federal government to fund 90 percent of states' costs with the proviso that if they did not implement the expansion, they could lose all of
March 28, 2012

This afternoon's session centered around the Medicaid expansion and whether it was coercive for the Federal government to fund 90 percent of states' costs with the proviso that if they did not implement the expansion, they could lose all of their Medicaid funding.

The idea behind this was to revamp how Medicaid works to deliver health care to the very poor in our states so that they wouldn't simply have triage services, but preventive and access to regular health care like everyone else. To make that happen, Congress offered the large payment in exchange for reshaping Medicaid across the states.

This particular piece of the Affordable Care Act strikes right at the argument over government overreach and federalism. The federal government could have simply expanded Medicare to cover the very poor and administered everything on a federal level, but instead chose to leave the actual administration to the states while funding it to the tune of 90 percent.

To the right wing, this is called coercion. To the left, it's called a gift. There isn't any middle ground, as was evident by the sharp division along ideological lines in today's argument. I don't think that the eloquence of Solicitor General Verrilli's closing argument will change any minds on either side. As much as I don't want to handicap the outcome, this one felt very much like a 5-4 decision, with Medicaid and the poor being the losers.

Because the closing arguments more or less sum up the principles being hashed out, I've clipped them here. SG Verrilli's is first; Attorney Paul Clement's is second (and far shorter).

It comes down to this: Is liberty really freedom from the shackles of exclusion; that is, being denied access to health care because one is poor or sick? Or is liberty being freed from the obligation to participate; that is, accept the individual mandate or penalty and on the state level, the constraints under which the federal government will fund 90 percent of funding for the poor? Those are the choices. Both sides cry liberty, but the court will define the one we all will have to live with.

I am feeling pessimistic today. Even though I understand all of the admonitions that oral arguments are generally not determinative of a final outcome, and even though there were small glimmers of possibility that at least two justices might understand what it means to strike the Affordable Care Act in its entirety, it's also true that I paid a visit to the comment sections of my previous posts, where I saw people hoping they would strike it in the hopes of getting something better.

This triggered my pessimism, because there is no way that killing the Affordable Care Act will lead to something better. It will mean more people die, more people do not get treatment for chronic illness, that more people go to emergency rooms, and finally, that the entire health care system is at risk of blowing up altogether. It will mean that the conservatives forever control our health care system and access to it.

Conservatives' vision for the future is one where we are all enslaved in one way or another. We're either enslaved to our corporate masters so we can have health insurance, even those who might innovate or create if they had the freedom to do it and still be able to go to the doctor, or we're enslaved to our bodies, which might fail us for no reason other than a genetic defect, or environmental reasons, or a virus, or just fate. They see liberty as something to be controlled by the privileged few, by the wise men (and yes, I do mean men) in their counting-houses who dole out "opportunities" to make them and their friends richer.

On the other side, liberals' vision for the future is one of community, where we attend to those basic needs of our society collectively. Education, health care, roads, public safety. These are all areas where we believe government can be most effective, freeing individuals to pursue whatever path to prosperity or satisfaction they wish.

One is cynical; the other hopeful. And right now, it would appear the cynics are winning the message war.

Transcript of the closing arguments after the jump:

MR. VERRILLI: But if I may just say in conclusion that --I would like to take half a step back here, that this provision, the Medicaid expansion that we are talking about this afternoon, and the provisions we have talked about yesterday, we have been talking about them in terms of their effect as measures that solve problems, problems in the economic marketplace, that have resulted in millions of people not having health care because they can't afford insurance.

There is an important connection, a profound connection between that problem and liberty. And I do think it's important that we not lose sight of that. That in this population of Medicaid eligible people who will receive health care that they cannot now afford under this Medicaid expansion, there will be millions of people with chronic conditions like diabetes and heart disease, and as a result of the health care that they will get, they will be unshackled from the disabilities that those diseases put on them and have the opportunity to enjoy the blessings of liberty.

And the same thing will be true for -- for a husband whose wife is diagnosed with breast cancer and who won't face the prospect of being forced into bankruptcy to try to get care for his wife and face the risk of having to raise his children alone and I can multiply example after example after example.

In a very fundamental way this Medicaid expansion, as well as the provisions we discussed yesterday, secure of the blessings of liberty. And I think that that is important as the Court's considering these issues that that be kept in mind. The -- the Congress struggled with the issue of how to deal with this profound problem of 40 million people without health care for many years, and it made a judgment, and its judgment is one that is, I think, in conformity with lots of experts thought, was the best complex of options to handle this problem.

Maybe they were right, maybe they weren't, but this is something about which the people of the United States can deliberate and they can vote, and if they think it needs to be changed, they can change it. And I would suggest to the Court with profound respect for the Court's obligation to ensure that the Federal Government remains a government of enumerated powers, that this is not a case in any of its aspects that calls that into question. That this was a judgment of policy, that democratically accountable branches of this government made by their best lights, and I would encourage this Court to respect that judgment and ask that the Affordable Care Act, in its entirety, be upheld. Thank you.

At the end of Paul Clement's rebuttal, he concluded this way:

MR. CLEMENT: Let me just finish by saying I certainly appreciate what the Solicitor General says, that when you support a policy, you think that the policy spreads the blessings of liberty. But I would respectfully suggest that it's a very funny conception of liberty that forces somebody to purchase an insurance policy whether they want it or not. And it's a very strange conception of federalism that says that we can simply give the States an offer that they can't refuse, and through the spending power which is premised on the notion that Congress can do more because it's voluntary, we can force the States to do whatever we tell them to. That is a direct threat to our federalism.

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