The Medicaid argument

March 28, 2012 | By TIMOTHY SANDEFUR

Just got out of a fascinating oral argument on the constitutionality of the Medicaid expansion requirements in Obamacare. Here’s the view from the front steps. More on a bit.

The argument today went much better for opponents of Obamacare than I anticipated. The justices, and particularly Chief Justice Roberts, showed real concern for the coercion of the states that the Medicaid expansion requirements represent. Paul Clement put the argument so effectively that the Chief allowed him fifteen extra minutes, effectively doubling the length of today’s hearings. Justice Kennedy also made clear his deep concerns about federalism and the way that the Medicaid requirements dramatically increase the states’ liabilities. The liberal bloc, particularly Justice Kagan, practically ridiculed the argument, but when Solicitor General Verrilli spoke, he repeatedly failed to provide the justices with any realistic answer to the main concern about the autonomy of states and whether they have real freedom of choice when told that if they don’t comply, they will lose all Medicaid funding. Perhaps the highlight came when Roberts likened the “choice” states are presented with to a “money or your life” choice from an armed robber. Verrilli insisted that the federal government has never withheld Medicaid funding to a state for failure to comply. But that, Roberts answered, was like the robber saying he’d never had to shoot anyone. The reason is that everyone complies.

There appear to be at least four votes in favor of the states, here, and likely even a fifth, with Justice Kennedy, who played it close to the vest as usual, but who asked pointed questions to the Obama Administration’s lawyer, and who at one point asserted: “the point is, there’s no real choice.” Kennedy appeared especially drawn to Clement’s observation that laws like this harm democratic accountability because the people become less able to discern who is really responsible when the government program fails.

Perhaps the low point came in Solicitor General Verrilli’s lame closing speech, which tried to effect a moving summation of the high hopes and dreams of Obamacare, but which seemed to bore the justices and to prove how little legal argument the Administration has. It was dull, overly long, and not an effective way to distract the justices from the Administration’s utter inability to explain how, if it wins the case, the federal government would still be one of limited, enumerated powers. It’s a hopeful day for opponents of Obamacare.