Why John Roberts Was Wrong About Healthcare by Sen. Mike Lee

Author:Sen. Mike Lee
Language: eng
Format: epub
Publisher: Threshold Editions

III. Why the Supreme Court Was Wrong to Rewrite the ACA’s Medicaid-Expansion Provisions to Save the Rest of the ACA

After the Court found that the ACA’s Medicaid-expansion provisions would unconstitutionally coerce the states, it should have attempted to ascertain whether those provisions could be “severed” from the rest of the statute. This concept is commonly known among lawyers and jurists as the “severability” doctrine. Following time-honored precedent, the Court would normally base its severability findings on (1) whether the remaining provisions would operate as Congress designed them and (2) whether Congress would have enacted the remaining provisions standing alone. The Court, however, refused to engage in any meaningful severability analysis. Instead, the Court chose—once again—to rewrite the ACA, this time in order to sidestep the severability issue altogether.

The same five-member majority (led by Chief Justice Roberts) that rewrote the mandate provision in order to save it also rewrote the Medicaid-expansion provisions. Specifically, the majority ordered the government not to “withdraw existing Medicaid funds for failure” to expand their Medicaid programs pursuant to the ACA—even though the ACA unambiguously and deliberately threatened the states with such a withdrawal. Slip Op. at 56. This statutory revision, the majority explained, “fully remedies the constitutional violation we have identified.” Id. On that basis—and based on the majority’s highly subjective assessment that “we do not believe Congress would have wanted the entire Act to fall, simply because some [states] may choose not to” expand their Medicaid programs as required by the ACA—the majority decided to leave the entirety of the ACA intact in spite of the constitutional defect identified by seven members of the Court. Id. at 58.

In avoiding the severability question, the majority essentially disregarded the fact that if states are allowed to opt out of Medicaid expansion (without any risk of losing their existing federal funding), the states could fundamentally alter the manner in which the ACA’s remaining provisions operate. For example, the majority failed meaningfully to address the economic imbalances that will occur when states exercising their right to opt out of Medicaid expansion are compelled to “subsidize, by the federal tax dollars taken from their citizens, vast grants to the States that accept . . . [e]xpansion.” Dissent at 65.

The majority also failed to acknowledge that the entire system established by the ACA will be thrown off-balance by the possibility—neither contemplated by Congress nor permitted under the statutory text—that some states will choose not to expand their Medicaid programs as required by the ACA. As the dissent explained, the healthcare system envisioned by the ACA—ushered into existence by means of a complex interplay between the Medicaid-expansion component of the ACA and other provisions governing the individual mandate, health insurance exchanges, employer-provided health insurance, insurance regulations, hospital reimbursement, and other key reforms—necessarily assumed full participation by the states in the ACA’s expansion of Medicaid. See Dissent at 55-65.

Without the kind of full participation in Medicaid expansion that was clearly contemplated (and indeed mandated) by the text of the ACA, the ACA will not be able to operate as designed by Congress.

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