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Why Justice Roberts' Opinion Could Set Alarming Precedents

Roberts' opinion sets alarming precedents because it ignores decades of established Court doctrine, which could have massive implications.

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GOP politicians’ beating up on the poor is neither new nor radical. What’s radical about this part of the ACA ruling is the potential impact on public sector—not private sector—healthcare, because that may slow the creation of a uniform nationwide public system that could one day lead to universal government-delivered healthcare.

Having a patchwork of different state systems and services would hamper creation of a national public option—which progressives have long desired. In this respect, the Court’s ruling upholding the requirement that everyone have a health plan (private or public) and allowing states to opt out of Medicaid expansion is exceptionally pro-business.  

Moreover, the Medicaid precedent also raises the question of what other costly federal programs states may object to—and refuse to implement if they forego the funding that comes with it? During the Court’s hearing on the ACA, Justices Sonia Sotomayor and Elena Kagan both noted that limiting Congress’ spending authority—as the Court majority did in this case—could limit Congress’s responses in national crises.

“When future Spending Clause challenges arrive, as they likely will in the wake of today’s decision, how will liti­gants and judges assess whether “a State has a legitimate choice whether to accept the federal conditions in ex­change for federal funds”?” wrote Ginsburg, quoting Roberts. “Are courts to measure the number of dollars the Federal Government might withhold for noncompliance?”

“The portion of the State’s budget at stake? And which State’s—or States’— budget is determinative: the lead plaintiff, all challenging States (26 in this case, many with quite different fiscal situations), or some national median? Does it matter that Florida, unlike most States, imposes no state income tax, and therefore might be able to replace foregone federal funds with new state revenue? Or that the coercion state officials in fact fear is punishment at the ballot box for turning down a politically popular federal grant?

“The coercion inquiry, therefore, appears to involve political judgments that defy judicial calculation.”

Ginsburg said the majority’s Medicaid analysis was exactly the opposite of how the Constitution envisioned the separation of powers between Congress and the states.

“At bottom, my colleagues’ position is that the States’ reliance on federal funds limits Congress’ authority to alter its spending programs,” she wrote. “This gets things backwards: Congress, not the States, is tasked with spending federal money in service of the general welfare. And each succes­sive Congress is empowered to appropriate funds as it sees fit.”

While many commentators praised the decision for not overturning the ACA, and lauded the Chief Justice for siding with the Court’s moderates, they are overlooking how pro-business, radical and politicized the ACA ruling is. Those politics will not just play out in the presidential campaign, where Mitt Romney on Thursday again vowed to overturn the law if elected, but inside red states as anti-Obama GOP leaders will use Medicaid as a political pawn.

Looking further down the road, the Medicaid precedent will tempt other states’ rights rebellions to rise, and also curtail Congress’s ability to respond—as a nation of 50 states—in a national emergency. Not only is the Roberts' ruling entirely pro-business, by sending tens of millions of new customers to insurers while limiting state expansion of public care, it is based on a right-wing vision of a shrunken Constitution and diminished congressional powers.

That is as radical a reshaping of congressional powers to regulate economic issues as the  Citizens United was a radical reshaping of the campaign finance landscape. If you are reading media accounts praising Roberts, read Ginsburg’s dissent. It reveals just how pro-business, ideological and ahistorical the Court under Roberts truly is.

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