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March 28, 2012

Limiting Principle: "So Far, the Medicaid Expansion Looks Safe"


Conservative justices pressed Obama's mouthpiece for a limiting principle to his assertion that the government could compel you to buy something.

The justices want the same thing regarding the ObamaCare's coercive mandates that states greatly expand Medicaid, on pain of losing all funds. They want a limiting principle there, a bright line where they can say on one side of it, the federal government is behaving appropriately, but on the other side of it, they are usurping states' prerogatives and powers in the federal system.

Or else surely the federal government can just do whatever it likes, right? And whatever we think about ObamaCare, we know, as a foundational fact, that the American system of government is not premised on the idea that the federal government can do whatever it likes.

A common useful phrase in law is "But that proves too much." You have to be careful of that. If your suggested rule "proves too much" -- winds up resulting in unexpected or plainly-wrong situations, like "the federal government can do whatever it likes, really" -- your suggested rule can't possibly be correct. There has to be some corollary rule that would stop your main rule from reaching that absurd conclusion. And if you can't think of such a corollary rule, such a limiting principle, it casts doubt on the main rule you're pushing.

SCOTUSBlog reports:

So far in the [Solicitor General's] argument, significant pressure from the conservatives to acknowledge some line beyond which threats to funding are coercive. But no strong questions that this particular extension goes too far. So far, it looks safe.

Kind of a mix, there, obviously. On one hand, the Solicitor General can't offer up a limit to the power he's claiming to force states to do the federal government's bidding. On the other hand, no one is asserting (or asserting in the guise of a question) that this particular overreach is too much overreach.

Not sure how you would "ask" that "question" though. Seems if they're asking about a limiting principle, they're already entertaining the notion that this, too, goes too far.

Why This Is Important: If the justices also think this is unconstitutional, there's no possible way to keep the whole law alive.

One gaping hole in the side of a ship? Well, okay, I guess maybe you can bail and seal off that compartment.

Two gaping holes? Scuttle it.

Philip Klein, at the Court: Some Tough Questions, But He'd Be "Surprised" if Court Struck Down Law on This Basis. @philipaklein is reporting via tweet on the Medicaid discussion.

Here are his most recent tweets. They're in reverse order, so start at the bottom, you morons.

To clarify prior tweet, I'd be surprised if they struck down Medicaid expansion. Of course, it would be moot if they struck down whole law.

Kennedy on Medicaid expansion: "There is no real choice." [i.e., this is not a carrot from the government -- it's a pure command, on penalty of losing a huge amount of your own citizens' tax money. -- ace]

Scalia after Verrilli struggled to answer him: "I wouldn't think that would be a surprise question."

Scalia likened the Medicaid expansion to the fed gov't making states an offer they can't refuse.

Also, Scalia managed to make a Jack Benny joke and a Godfather reference in one line of questioning on Medicaid.

Alito and Scalia seemed most sympathetic to arg that Medicaid expansion was coercive. Kennedy expressed concerns, but harder to read.

On the other hand, Roberts said that states have been compromised since New Deal by dependence on federal money. (2/2)

On one hand, Roberts seemed concerned abt Medicaid expansion being coercive. (1/2)

Just got out of Medicaid args. Tough to say, but I'd be surprised if they struck it down.

Summary: Klein has now put his thoughts into a short report that you don't have to read from the bottom up.

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posted by Ace at 02:41 PM

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