Commentary: The triumph of the Union in the American Civil War represented a new beginning for us as a single nation, not simply a federation of states. Linguistically, we went from "these United States are" to "the United States is"; constitutionally we affirmed through the 14th Amendment that each individual born or naturalized here is a citizen of the United States with "privileges and immunities" that flow from that national citizenship.
Even before the Civil War, the Constitution offered no basis to think of states as possessing full sovereignty equivalent to that of independent nations. States did and do have a sphere within which they can legislate. Nevertheless — as originally set forth in Article VI of the Constitution — when Congress exercises its powers, states, as subordinate entities, must yield to the federal government.
It’s worth quoting from Article VI: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
Nevertheless, a lot of people — from those who betrayed their country to join the Confederacy, to those who raised the "states’ rights" banner in defense of racial segregation in the 1950s and 1960s, to those who oppose labor and environmental protections — have never liked or accepted the idea of federal supremacy, preferring instead to imagine that states (at least those states that are congenial to their political views) are entitled to a deference never once referred to in the text of the Constitution.
(The 10th Amendment, often cited by states-righters, actually underlines both the point that the federal government's powers did not come from the states but from the Constitution itself, and that there is no constitutionally-prescribed "deference" to states. Either the United States does not have a power, or it does. If it does, whatever political considerations outside of the Constitution may limit the exercise of a federal power, no other limitation is set forth in the Constitution.)
E pluribus unum no more
The Supreme Court’s decision on the Affordable Care Act did many things, but it was most fundamentally a decision to reorder the relationship between the federal government and the states, a decision to subordinate the idea of nationhood to judge-made deference theory.
You wouldn’t know it from the way Chief Justice Roberts and the "joint dissenters" (Justices Scalia, Thomas, Kennedy, and Alito) framed their opinions to appear to be based on case law that had come before, but, as Justice Ginsburg wrote in her opinion — using italics to emphasize her point — the ACA case represented "the first time ever" that an exercise of Congress’ spending power had been found to be "unconstitutionally coercive."
The supposed coercion involved the ACA’s expansion of Medicaid. States that failed by 2014 to expand Medicaid eligibility to all individuals less than 65 years of age with income of less than 133 percent of the federal poverty line would have lost all of the funding that a future Congress chose to appropriate to Medicaid (not just the portion of such future funding that was attributable to the expansion).
Both the Chief Justice and the joint dissenters were in something of a box: they all were constrained to acknowledge that the Supreme Court had long recognized that the power of Congress to spend funds for the general welfare included the right of Congress to grant federal funds to the states and to condition the grant on the states’ taking specified actions — including actions that Congress does not have authority, through the exercise of any of its other powers, to require states to take.
The judicial Houdini acts these justices performed to prohibit Congress from conditioning funds attributable to the existing Medicaid program on agreement to expand Medicaid eligibility were staggeringly perverse. (Justices Breyer and Kagan joined the Chief Justice in this aspect of his decision.)
States are so reliant on Medicaid funding, the reasoning went, that they would really have no choice but to agree to Congress’ desired expansion, and a lack of choice in amending a contract is equivalent to impermissible coercion.
But the "contract" was never an entitlement to permanent funding for the existing Medicaid program. Indeed, it is not difficult to imagine that an item at the top of the Republican agenda should there be a GOP sweep in November would be the ending of the Medicaid program as we know it.
More importantly, the question is one of Congressional authority. It cannot be denied that Congress has the authority to pass the following two-part piece of legislation. In the first part, Congress would end Medicaid and terminate all Medicaid funding as of the end of fiscal year 2013. In the second part, Congress would create and fund Medicaid II (the ACA’s expanded Medicaid program) commencing in fiscal year 2014. Nothing in the court’s recent decision would prohibit this, and states would not be heard to say that they had an entitlement to participate in the old Medicaid program that Congress had scrapped.
As Congress has the authority to end Medicaid, it is hard to imagine how Congress couldn't have the authority to take the lesser act of modifying Medicaid. As Justice Ginsburg put it, "By what right does a court stop Congress from building up without first tearing down?"
Protecting state officials from the consequences of their actions
Chief Justice Roberts had a remarkably revealing answer to Justice Ginsburg's question. Going the repeal-and-reenactment route, he said, "would certainly not be that easy. Practical constraints would plainly inhibit, if not preclude, the Federal Government from repealing the existing program and putting every feature of Medicaid on the table for political reconsideration."
In short, the Chief Justice was entirely unable to deny the existence of Congressional authority to create a "new and improved" (or, in the view of some, "new and even worse") Medicaid program. His view of what may seem to be "practical constraints" and the risks of "political reconsideration" had nothing to do with defining the scope of Congressional powers: risks and constraints are ever changing as the political composition of Congress changes (prior to 1965, of course, it was not practical to enact a Medicaid program at all).
"I’m going to make Congress take a more difficult — but undoubtedly permissible — route to achieve its goals," does not have a great ring as constitutional doctrine.
What was actually going on was that the Chief Justice and the joint dissenters are frightened to let conservative state officials face the consequences of their decisions.
Chief Justice Roberts wrote that the threatened loss of funding if a state declined to expand Medicaid was "economic dragooning that leaves the States with no real option but to acquiesce."
The joint dissenters call forth a parade of horribles including the possibility that a state that turned down the Medicaid expansion would see its citizens paying "huge tax sums to the federal fisc for the sole benefit of expanding Medicaid in other States." They also sought to guard against the possibility that federal officials, by forcing an unpopular program on state officials, would shift blame for the unpopular action to the state officials.
In truth, even if an anti-coercion rule should exist, none of the foregoing represents coercion or the risk of blurring responsibility.
A state really could “just say no” to Medicaid expansion and thereby risk the loss of all Medicaid funds, however cruel, mean-spirited, and counter-productive such a decision would be. The Chief Justice admitted that "just say no" is the usual recourse states should be expected to take (again revealingly, he characterized this responsibility as a function of states being "separate and independent sovereigns").
Such a decision in the particular case would have had serious consequences, of course. If state officials wanted to eliminate current Medicaid-type assistance in the aftermath of a full federal funds cut off, many voters might object. If those state officials wanted to continue such assistance, they would have to raise taxes, a course many other voters might resent. Voters might also, as Justice Scalia suggested, wonder why it was that their federal taxes were funding an expanded Medicaid program in other states.
But having state officials take responsibility for the choices they make between and among alternatives is the essence of political accountability, just as is the case for federal officials.
There is not an anti-ACA governor, state legislator, or media outlet who has not and will not make plain to every person within earshot that any and all costs associated with ACA provisions — including Medicaid expansion — are traceable to federal officials.
If the court had not interfered, state officials could have made decisions as they saw fit, and voters everywhere could, as usual, decide how to apportion credit and blame. Some — one would hope most — would reject the every-person-for-himself and every-state-for-itself view, along with the politicians who espouse such views. Whether they did or not, substitution of the court’s will for that of the people — either as expressed through the Congress (which did, after all, pass the ACA, practical obstacles notwithstanding) or directly through the ballot box — is the dictionary definition of the judicial activism that Chief Justice Roberts and most of his colleagues profess to abhor.
The more important the issue to Congress, the more restrictions
One particularly perverse impact of the ruling is to make it more difficult for Congress to enlist state cooperation through the use of the power to spend for the general welfare precisely when Congress determines an issue to be of great national importance.
The joint dissenters spilled much ink discussing what they described as the expectation that all states would go along with Medicaid expansion rather than risk the loss of all Medicaid funding. That, to them, was evidence of coercion.
But it would not be surprising that the problems that Congress determines to be the largest would be the problems to which Congress devotes the greatest resources.
In the judicial version of Alice in Wonderland put forward by a majority of justices, however, it is only where the stakes are relatively low that Congress will be able to "conscript" states — because states wouldn’t have any problem saying "no." Where Congress has identified issues as being of greatest national concern, on the other hand, and especially when Congress determines that a problem already identified as significant is even worse than originally realized and demands more resources, there the justices believe that the hands of Congress should be tied.
Another front in an ongoing war
Some people may take perverse comfort in imagining the ACA case to be just an anomaly, like Bush v. Gore, where the Court’s stated rationale was simply cover for the result it wanted to achieve (the Bush court didn’t really want anyone taking its equal protection analysis seriously: it explicitly said that its consideration was "limited to the present circumstances," or, to translate, "this case is just different").
But trying to exalt the states to a status of equal and independent sovereigns on par with the federal government has been a longstanding project of right-wing justices — despite the previously quoted Supremacy Clause of the Constitution.
In 1996, the Supreme Court tried to dress up a decision shielding states from lawsuits by personsw or entities injured by a violation of federal law by claiming that the 11th Amendment had always been seen as permitting only the federal government to sue states for federal law violations. But that decision — Seminole Tribe of Florida v. Florida— was, in fact, the very first time the Supreme Court — ignoring the fact that the shield was nowhere to be found in the actual language of the 11th Amendment — had so ruled.
Seminole Tribe involved the Indian Gaming Regulatory Act, but in short order, the Court was using Seminole Tribe as a weapon to limit the right of individual citizens from suing states for federally-prohibited age and disability discrimination.
Here, too, what may seem today as a ruling having to do with the "unique" circumstances of the ACA is likely to be deployed again and again, with deference and coercion the code words used to thwart the will of Congress as to a wide range of matters affecting the general welfare.