The U.S. Supreme Court questioned attorneys relentlessly yesterday on whether a massive expansion of Medicaid tucked into the 2010 health-care reform law effectively bullied states into accepting the law to continue receiving federal Medicaid money.
The oral arguments were the conclusion of more than six hours of often-spirited debate about the new health law over three days. The court is expected to issue its decision this summer -- around the time when the presidential campaigns heat up for the November election -- and could find the entire law unconstitutional because of a requirement that most Americans buy health insurance.
At issue yesterday was whether the expansion of Medicaid eligibility -- which would add about 10 million people to the rolls over the next decade -- unconstitutionally compels states to abide by the health-care law or risk having all their Medicaid funding rescinded. The federal government would pay at least 90 percent of the cost of coverage for newly eligible people, and it would pay 100 percent through 2016.
Medicaid, established in 1965, is a cooperative federal-state program that helps pay for medical care for needy people.
Former U.S. Solicitor General Paul Clement, representing Ohio and 25 other states suing the federal government, argued that states will decide they have no choice but to accept the new requirements because they don't want to risk losing federal money they have come to rely on.
Justice Elena Kagan questioned why what appears to be a federal gift would be a matter of coercion. She likened it to hiring someone for $10 million a year.
"Now, we would both be agreed that that's not coercive, right?" she asked.
Clement replied that it would depend where the money came from.
"Wow," Kagan replied. "I'm offering you $10 million a year to come work for me, and you are saying that this is anything but a great choice?"
"Sure, if I told you, actually, it came from my own bank account," Clement said.
Justices also questioned why the expansion amounts to coercion when the federal government has traditionally entered into partnerships with states in which it has provided money if states meet certain conditions.
"They tied the strings," said Chief Justice John Roberts. "They shouldn't be surprised that the federal government isn't going to start pulling them."
However, Roberts and other conservative justices also suggested that the stakes are too high for states to forfeit federal money. "No state is going to say, 'OK, go ahead, make my day, take it away,"" Roberts said. "They're going to give in."
Earlier yesterday, the high court took up the issue of whether the entire health-care law would be invalidated if its core provision -- the requirement that most Americans have health insurance -- is declared unconstitutional.
Clement argued that because that mandate is inextricably tied to a long string of other measures in the law, the court should throw out the whole law if it declares the mandate unconstitutional.
"At a certain point, I just think that, you know, a better answer might be to say, 'We've struck the heart of this act; let's just give Congress a clean slate,"" Clement said.
Justices peppered lawyers on both sides with questions, making it far from clear which route they will follow.
Many justices appeared concerned that if they did not throw out the whole law, they might veer into legislating by deciding which provisions would remain and which would go.
"You really want us to go through these 2,700 pages?" asked Justice Antonin Scalia of Deputy Solicitor General Edwin Kneedler, who represented the federal government. "And do you really expect the court to do that?"
But other justices suggested that the mandate has little to do with much else in the act, which includes provisions on Indian health care and requiring that health-insurance companies cover adult children until the age of 26 and not deny coverage to individuals because of pre-existing medical conditions.
Kneedler, meanwhile, said that some provisions of the law already have been enacted, including new Medicare rates, and will have to be revisited if the entire bill is thrown out.
"We have very important indications from the structure of this act that the whole thing is not supposed to fall," Kneedler said. "The most-basic one is, the notion that Congress would have intended the whole act to fall if there couldn't be a minimum-coverage provision is refuted by the fact that there are many, many provisions of this act already in effect without a minimum-coverage provision."
For example, he said, 2.5 million people younger than 26 have insurance because of the law.
But the justices' questions reflected uncertainty on how to proceed.
"Why should we say, it's a choice between a wrecking operation, which is what you are requesting, or a salvage job?" Justice Ruth Bader Ginsburg asked Clement. "The more-conservative approach would be salvage rather than throwing out everything."
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