High court ruling not seen as political

July 6, 2012
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Even though the U.S. Supreme Court was severely criticized in conservative circles for going too far in upholding the controversial individual-mandate provision in the Patient Protection and Affordable Care Act, it also gave the 50 states a major victory by conservatively declaring that the federal government did not have the authority to force the states to expand their Medicaid programs.

By a 7-2 vote, justices rejected what they essentially saw as a mandate for states to expand the eligibility for Medicaid enrollment to 133 percent of the poverty level. The provision’s passage would have added roughly 17 million people to the program, and the federal government would have paid all the states’ costs to do so for at least the first five years. Instead, the high court gave states the option to go that route and, at the same time, limited the authority of Congress.

Under the system, the federal government cannot coerce the states to pass laws or commandeer state officials for its purposes. What the federal government can do is encourage the states to adopt a policy by providing those governments with a monetary incentive. That is what Congress did when it pledged to give the states an estimated $443 billion through 2019 to expand Medicaid, but with a catch that the court didn’t appreciate.

“What the Affordable Care Act did is it said to the states, ‘You must raise your Medicaid eligibility to 133 percent of the poverty line and if you don’t, we are going to withhold all of your Medicaid money.’ Well, federal Medicaid allocations to the states are about 10 percent of the states’ total revenue. So what choice did the states really have?” said Devin Schindler, a constitutional law and health care regulation professor at Thomas M. Cooley Law School in Grand Rapids.

So Michigan and 25 other states filed a suit against that provision of the act claiming that Congress was forcing states into compliance, and a clear majority of the nation’s highest court agreed.

While this decision may not be of the landmark variety, Schindler said the way the court arrived at it was unusual.

The justices considered three options, of which two are readily apparent. One, states could go along with the directive. Two, states could drop out of the Medicaid program entirely. But the third option, Schindler said, was a real judicial twist to the prevailing opinion.

“The court gave the states the choice to continue with their current program and get their current funding, if they choose not to increase the state law on Medicaid eligibility. Of course, the federal government doesn’t have to give them any more money and pay for something the states didn’t do. But the federal government cannot take away the existing funding from the states,” he said.

“So now the states have another choice. The old choice was all or none. Well, now the states can do half a loaf,” he added. “That third choice shows states still have the ultimate power.”

The third choice also restricts Congress’ power, while it safeguards the rights of states and maintains a conservative credo. Yet in the vote, two of the court’s four liberal associate justices sided with its five conservative members. But Elena Kagen and Stephen Breyer haven’t faced nearly the criticism from the liberal base that Chief Justice John Roberts has drawn from conservatives.

Even Associate Justice Anthony Kennedy, who has often been the court’s swing vote, waded into the fray. Kennedy, who wrote the dissenting opinion on the mandate provision, accused the majority of “judicial legislation” and “vast judicial overreaching.” Of course, as Schindler pointed out, most of the country’s attention was centered on the mandate, and any ruling on it would certainly produce more scrutiny than the Medicaid decision.

”Part of that, I think, was pure politics. The mandate was the one everybody was worried about, and Medicaid was seen as a secondary issue,” said Schindler, who didn’t see the mandate ruling as being political. “Everything can be labeled ‘political’ and it depends, I suppose, on how you define political.”

Schindler based his answer on what Roberts said at his Senate confirmation hearing. “Justice Roberts, time and time again, made the point with his umpire analogy: ‘It’s not my job to write the rules; I just call the balls and strikes,’” said Schindler.

“He also said ‘judicial minimalist’ several times: ‘I don’t believe we should have enormously broad constitutional cases that we should rule on the narrowest base as possible. I also believe we should follow the precedent and support what we’ve done before. I’m a judicial minimalist,’” he said of Roberts’ Senate testimony.

“I believe that about a month before the opinion was issued, Justice Roberts was sitting up one night and asked himself if he was a man of principle or not a man of principle. The case law is weighed in favor of upholding the individual mandate. I am troubled by the expansion of government power, but I have a very narrow way to uphold this law using existing precedent,” he said of what he felt went through Roberts’ mind.

“Everybody got their fair shot. The political process was transparent here.”

Schindler said he normally doesn’t like using the terms “conservative” and “liberal” when he describes legal rulings, but he made an exception in this case.

“This is a very conservative opinion. It limits federal constitutional power under the commerce clause. It limits federal constitutional power under the spending clause. It puts real limits on it, and it also puts limits on the federal taxing power,” he said.

“If I was a Federalist — somebody who believes in limited federal government and somebody who believes in state rights and all that kind of thing — I’d think it’s a good opinion. The majority of it limits federal power. It’s not so much in this case where it’s important, but this case is going to be cited for the next 100 years every time an issue of federal power is raised.”

This case is also going to be raised in Schindler’s constitutional law class. It will be the second case his students delve into in September when the fall semester gets under way. What does he hope his students take away from the case?

“I hope they lose their cynicism. Today, so many of my students are so cynical. They say, ‘The Supreme Court is all political. They don’t vote on the law — they ignore the law. They vote on their personal political beliefs.’ Well, I’m going to point to this case and say, ‘No. There still are justices in the world, whether you like the outcome or not, that take the rule of law very seriously,’” he said.

“Here I have a so-called conservative justice who I believe does not like the Affordable Care Act. He believes in his heart of hearts in his position that, yes, it is an imposition on individual rights. But because of the nature of the Constitution and because of the nature of the previous cases that have been decided, he felt he was duty bound to follow the law.”

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