By Tony Mauro
The Supreme Court's liberal wing came alive Wednesday afternoon, aggressively questioning former solicitor general Paul Clement on his claim that the Medicaid expansion contained in the Affordable Care Act is an unconstitutional intrusion on state power.
"Why is a big gift coercive?" asked Justice Elena Kagan pointedly. "Where does this idea come from?" a skeptical Justice Stephen Breyer asked Clement. The barrage from liberal justices was a highlight of the final of four arguments spread over three days on the constitutionality of the 2010 health care reform law.
Clement, who represented 26 states challenging the law, said the provision, which subsidizes the cost to states of a major expansion of the program for the poor and disabled, was "uniquely coercive" because of the magnitude of the program and the threat contained in the law that all Medicaid funding could be withdrawn from states that don't participate.
The questioning of Clement by liberal justices was so sustained that Chief Justice John Roberts Jr. gave Clement an extra 15 minutes beyond his allotted half hour. Solicitor General Donald Verrilli Jr.'s time was also extended.
Verrilli defended the Medicaid provision, arguing that "states have a choice" not to expand their programs. He also used his time to sum up the Obama administration's position that the entire Affordable Care Act will "secure the blessings of liberty" for 40 million people who now have no health insurance. In rebuttal, Clement said it was a "funny concept of liberty" if the law is based on an individual mandate that forces people to buy insurance.
The law would extend Medicaid benefits over time to an estimated 16 million nonelderly, nondisabled people who have no health insurance now and whose incomes are less than 133 percent of the federal poverty level.
The states represented by Clement object to the incentives the law offers to states to finance the expansion. The law would underwrite 100 percent of the states' added costs through 2016, which the states say amounts to a "take it or else" offer that they cannot refuse — rendering it so coercive that it subverts the power of states and oversteps the spending power of Congress. Thirteen other states filed a brief asserting the law is not coercive, and noting that the penalty for states that don't participate is not an automatic withdrawal of all Medicaid funding.
With the end of the historic three-day arguments on the Affordable Care Act, the justices will discuss the matter behind closed doors, and in the next few months write and review their opinions and likely dissents.
For continuing updates and background on the arguments, visit our health care hub at www.nlj.com/healthcare.