Obamacare, Day 3, Part II

This afternoon the Supreme Court heard the last of four oral arguments dealing with Obamacare…the states’ argument that Obamacare’s new mandates concerning Medicaid are an unconstitutional intrusion into states’ rights.  You can listen to the argument here, and read the transcript of the argument here.

The states can opt out of this expansion if they want to, but, they argue, if they do so, the law gives the Secretary of Health and Human Services the right to cut off all federal Medicaid funding, and, thus they are being coerced into going along.  As a matter of law, if the Court finds that the Medicaid expansion is coercive, then the law is unconstitutional.

All seemed to be going well for the government when it was brought out that the Secretary had never cut off funding for a state’s refusal to go along with a new federally mandated program until we learned from the attorney representing the states that the Secretary had, in the past, threatened to cut off all Medicaid funding for the State of Arizona if they refused to implement a new program.

But it’s a letter in the record in this litigation, and it’s a letter from the secretary to Arizona, when Arizona floated the idea that it would like to withdraw from the CHIP program, which is a relatively small part of the whole program.

And what Arizona was told by the secretary is that if you withdraw from the CHIP program, you risk losing $7.8 billion, the entirety of your Medicaid participation. So this is not something that we’ve conjured up — [See page 16 of transcript]

That is the fear that the states have.  Although we can “opt out” of the new mandates, if we do so, we could lose all Medicaid funding.

Although the Solicitor General argued that the Secretary would not be able to cut off all funding unless it was “reasonable”, at least two members were unpersuaded.  All they wanted from the Solicitor General was some assurance that the Secretary would not do so.  The Solicitor General refused to provide that assurance.

CHIEF JUSTICE ROBERTS: Could you give me some assurance? We heard the question about whether or not the Secretary would use this authority to the extent available. Is there circumstances where you are willing to say that that would not be permissible? I’m thinking of the Arizona letter, for example. I mean, if I had the authority and I was in that position, I would use it all the time. You might — you want some little change made? Well, guess what; I can take away all your money if you don’t make it. I win. Every time. It seems that that would be the case.

So why shouldn’t we be concerned about the extent of authority that the government is exercising, simply because they could do something less? We have to analyze the case on the assumption that that power will be exercised, don’t we?

GENERAL VERRILLI: Well, Mr. Chief Justice, it would not be responsible of me to stand here in advance of any particular situation becoming — coming before the Secretary of Health and Human Services and commit to how that would be resolved one way or another… [See pages 47-48]

And then, there was this,

JUSTICE KENNEDY: There’s no real — there’s no realistic choice. There’s no real choice. And Congress does not in effect allow for an out — opt out. We just know that.

And it’s –


JUSTICE KENNEDY: — it’s substantial. [See page 70]

Just from the questioning, I would say that the “conservative” members of the Court have problems with the reality that no state can opt our of this expansion.

The ironic part is that if the Solicitor General had just assured the Court that states would not be punished for failure to follow the new mandates, this issue would have gone away.

If you are interested in reading all of the briefs filed in the Supreme Court on this issue, you can find the links for that here.

18 replies
  1. dairyair
    dairyair says:

    ? Your hard work in distilling all this “stuff” down to a level mere mortals can understand is much appreciated. I really don’t have the time (or patience) to wade through all the legalese.
    ?? BTW, I heard on the radio today that SCOTUS would possibly render a decision in June…is that what you think?
    Thanks again!

    • SoundOffSister
      SoundOffSister says:

      The Court’s term ends June 30, and although there have been instances where a case is carried over to the next term (beginning the first Monday in October), that is rare.? Although Justice Breyer asked a question yesterday morning that was interesting.? He opined that if the mandate is held unconstitutional, maybe the parties could go back and agree on what sections of the law must also fail, and bring any disagreements to a later court.? That, however, seems to be a very unlikely outcome.

  2. Dimsdale
    Dimsdale says:

    The ability of a state to opt out of some or all of the provisions of ?bamacare seems as likely as the assurance that you will be “able to keep your insurance if you like it”.? Or that ?bamacare will save money.? Or that it will improve access to healthcare.

  3. Plainvillian
    Plainvillian says:

    Doesn’t this make one wonder if the congresscritters who voted for this bill have ever read or could understand the 10th amendment to the Constitution?

    • Open4FreeDebate
      Open4FreeDebate says:

      The same argument could be said for those who sign?Grover’s pledge as understanding the Constitution. But to your point; the tenth amendment is pretty broad “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” How many amendments had to be passed due to state abuses to peoples rights?

      • Lynn
        Lynn says:

        Oh Remember Dims. There was one person who used to use the Sesame Character’s name. I never could figure out who she meant! I also never cared what she thought.

      • Open4FreeDebate
        Open4FreeDebate says:

        A Grover is signing the Grover Norquist Pledge. Miss Lynn, how about a list from you noting all of the unprecedented federal abuses to peoples rights. I assume you mean Bill of Rights first ten amandments to the US Constitution?and others??

      • Dimsdale
        Dimsdale says:

        “Fearless Leader” seems to be the only person hell bent on trampling the Bill of Rights.? Ask the Catholic church, gun owners, private property owners etc.

  4. gillie28
    gillie28 says:

    Sos, will second dairyair’s appreciation.? Lot of work involved and you made “legalspeak” almost palatable (well, at least almost understandable!!!!!).??

    This whole health care “bundle” was just done too hastily, without?enough real and honest discussion, foresight and common sense.? It was a partisan deal and that can never be received well in the end.??Justic?Scalia made ?comments about the fact that parts of this law were voted for, even if many in Congress didn’t want them, in order to pass the overall bill.? Honestly, that’s the problem with so much of Congress and the laws passed, irrespective of party affiliation: PORK, PORK, PORK.? Congress represents excess from every conceivable angle.

    The country DOES need some kind of health reform.? Why on earth don’t states open up a free market in health care providers???? Competition would bring prices way down.? The monopolies that currently exist state-to-state just encourage price gouging.?

    • Lynn
      Lynn says:

      Gillie, You are absolutely right. Free Market for insurance co. I understand that insurance co. did NOT want to open up market and they lobbied against it. But Now that everyone is finally seeing what’s in the bill, maybe the light will dawn. In my dreams, I can see all companies springing up around the country offering individual plans that can be bought across state lines. Connecticut being the insurance capital of the world could have a huge advantage. Can you just see the jobs being produced? But I’m betting on the right to work states to catch the idea. LOL If I could rule the world for just one day!

      • Lynn
        Lynn says:

        Oh maybe Biden wanted to rule the world. Oh no it was some one else that wanted us to be China for a day. Can’t think of who would want us to be China for a day, but if you want a socialist regime here, I guess that would be why. Oh maybe it was Tom Friedman.

  5. JBS
    JBS says:

    I seem to remember the HHS Secretary saying the states would individually have to offer/approve insurance plans offered under ?bamaCare? Is that still the case? Or was she just “blowing smoke”?
    Gillie, if you think Medicare is full of graft, greed and corruption, which equals PORK in my estimation, ?bamaCare will have so much fraud, waste, abuse and vote buying that even Liberals will be amazed.
    Errrr, Liberals? Yeah. Probably not. They’ll be on the receiving end of the PORK.

  6. Jeff S
    Jeff S says:

    Justice Kagan’s comment of boatload of federal money as not being coersive.? No federal money ever comes without strings attached.? The comment of “boatload of federal money”?had to have?been a proud moment for the white house.

    • Lynn
      Lynn says:

      Just the fact, that a Supreme Court Justice would say “Boatload” in that wonderful courtroom. “Clueless” comes to mind although the Blonde in “Legally Blonde” showed more knowledge of law than Justice Kagan. Honestly, just when I think this administration and it’s ridiculous appointments can’t make any more blunders, Shazam there goes another one.? Maybe we can call them “Bidenisms”.

  7. JBS
    JBS says:

    Today, the “lame stream media” reported finding another $17 TRILLION funding shortfall in ?bamaCare!
    Is there any mechanism to impeach, recall or fire SCOTUS members? Kagan would be my number one candidate to oust.
    An indication of how Liberals view the Supreme Court. In a political cartoon depicting the nine justices, the “conservative” members are elephants and the favored ones are real people. Why aren’t Liberals depicted as the partisan people they are? Why only conservatives?

Comments are closed.