The hint of the outcome during the first day of oral argument (on the impact of the Anti-Injunction Act on the Court’s jurisdiction to hear the ACA case)
I think there was a clue to Roberts’ thinking during the first day of argument—during the argument on the applicability of the Anti-Injunction Act, an obscure “jurisdictional” statute, which precludes courts from ruling on the constitutionality of a federal tax until after the statute becomes effective and the tax actually is due. Roberts really indicated during that argument that he was interested in finding a way to rule that the penalty was a tax for purposes of Congress’s taxing power but not a tax for purposes of the Anti-Injunction Act. That would remove the issue of whether the mandate was within Congress’s Commerce power, since if it is a tax, the mandate and penalty/tax are within Congress’s taxing power. And then the only issue would be whether this violated the Fifth Amendment’s due process clause (liberty! broccoli!).
Late in the argument on the mandate issue the next day, under questioning by Sotomayor, the challengers’ lawyer, Paul Clement, conceded that under its taxing power, Congress could do pretty much the same thing as it did under what Congress thought its Commerce power allowed it to do. That effectively killed the due process (liberty! broccoli!) argument, since for purposes of that argument, it made no difference which Congress’s powers authorized it to enact the mandate and the related penalty.
Bev:
Did I understand correctly that ststes do not have to accept Medicais funding which will go to 90%(?) the first year the mandated coverage increased is put in place?
Yes, that’s right. The structure of the Medicaid law has always been that the states can opt out of the program if they want to. There was a provision in the ACA that would have allowed the sec’y of HHS the option of ending federal Medicaid funding for ALL of Medicaid–the money the state was already getting under other sections of the Medicaid Act–if the state refused to participate in the new expansion under the ACA. The majority said that was too coercive and therefore would be a violation of state sovereignty principles, so they struck that section. They said that if a state doesn’t want to participate in the expansion, or if the state doesn’t meet the statute’s requirements while participating, the federal government can withhold the portion of Medicaid funding under the ACA expansion but not the rest of the Medicaid funding–the part that the state was already getting before the ACA.
Bev:
Checked my points out and I am correct. States do not have to expand Medicaid if they do not choose to do so; but, they will sacrifice all new funding from the federal gov. which will cover the bulk of Medicaid expenses.
“CBO estimates show that the federal government will bear nearly 93 percent of the costs of the Medicaid expansion over its first nine years.” http://www.cbpp.org/cms/index.cfm?fa=view&id=3161 I hope they are not that dumb.
That’s the provision that the Court struck down today, run. Under that provision, the Sec’y of HHS had the authority to withdraw all Medicaid funds from states that opt out of the expansion under thw ACA. The Court–Roberts, joined fully by Breyer and Kagan and very grudgingly by Sotomayor and Ginsburg in order to get a majority ruling on the issue and avoid an impssible mess and return Roberts’ favor on the mandate–struck down the part that allowed the withdrawal of the funding the state was getting under the current Medicaid law.