David Bernstein Prints Stuart Buck: More Hints that Roberts Switched his Vote
Why Did Kennedy Peel Off to the Right?

Jonathan Adler on the Medicaid Provisions of Roberts's Switch-in-Time

The highly-intelligent Jonathan Adler writes:

Initial Thoughts on the Health Care Ruling: Holding that it would be unconstitutional to terminate existing Medicaid funds to states that refuse to go along with the Medicaid expansion is quite significant, particularly as seven justices joined this result. While the holding here may not go beyond the limits articulated in South Dakota v. Dole, the Supreme Court has not limited the exercise of the spending power to impose conditions on states since the New Deal and, again, seven justices endorsed this result. Going forward, I expect this portion of the opinion to have the greatest practical impact…

I think that Jonathan Adler is likely to be right.

Joint federal-state programs like Medicaid are an awkward beast. The federal government is making the state governments an offer they cannot refuse--"pony up for Medicaid or else", or "raise your drinking age to 21 or I will take away your highway money". (Note, however, that Arizona resisted the offer of Medicaid money for a long time.) Now we have seven justices who say that the federal government cannot do that, or at least that if the federal government has made an offer that cannot be refused, and its offer has been accepted, the federal government cannot then turn all Darth Vader on the states:

I am altering the deal. Pray that I do not alter it any further.

Roberts--and all the other justices save Sotomayor and Ginsburg, including two Democrats--appear to have thus created for the states a version of Charles Reich-like "new property" in the form of entitlements to established money flows from the federal government.

But what kind of entitlement, exactly?

At a formal level, this notion that the federal government cannot alter the terms of The Deal--that it must make a new deal, with consideration, offer, and acceptance--is hard to understand. The federal government could certainly repeal Medicaid entirely. It certainly could start up a new program equal to Medicaid + ACA Expansions and offer states that deal. It sounds as though if the ACA had been structured in this way:

  • Title 15: Title XIX of the Social Security Act, as amended, is repealed.
  • Title 16: New Medicaid = ACA Expansions + the old Title XIX of the SSA are mereby enacted

that that would, formally, pass Roberts's scrutiny.

Am I wrong in seeing this as a version of substantive due process for states reliant on money flows from the federal government?