John Hood has a compelling piece in this week’s National Review, arguing that governors should “Say No to Medicaid Expansion.” Even though Obamacare offers states a 100 percent reimbursement rate for newly eligible enrollees, states are rightly nervous about getting stuck with hidden costs:
I have spent the last several days reading and re-reading the opinions in NFIB v. Sebelius, hoping to find a unifying “theme” to organize all my thoughts about the case before posting about any of them. This exercise has left me with a deeper appreciation of how blogging differs from other forms of expository writing; a headache; and a vague sense that NFIB v. Sebelius is in part a case about sovereignty (as I had thought when I submitted this amicus brief (link no longer available) to the Eleventh Circuit).
Yesterday’s post described a sharp sectional divide in contemporary American federalism: pro-competitive states versus pro-cartel states. The divide holds across Obamacare/Medicaid, labor, environmental, tax, and cultural issues. Here is the basic map again (the competitive coalition appears in red, the cartel cabal in blue):
Today, as promised, some thoughts on what the sectional divide might mean for American politics and federalism.
Part 2: Thinking About Reform
Yesterday’s post made two points: (1) Medicaid is hopelessly unsustainable, regardless of the outcome of the Supreme Court litigation. (2) The brawl over ObamaCare’s Medicaid expansion isn’t a conflict between an imperious federal government and virtuous states; it is a conflict that pits the profligate states that have historically driven Medicaid’s expansion (and are defending ObamaCare in the Supreme Court) against the more cost-conscious plaintiff states. In conjunction, these points suggest an urgent need for a political reform strategy—one that builds on Medicaid’s actual dynamics, as opposed to federalism and “devolution” tropes; not the perennial non-starter of “block-granting” Medicaid, but something like a “free state” solution.
The government’s reply brief on Obamacare’s Medicaid expansion (“Obamacaid”) provides a competent, confident defense of the statute. It also provides occasion to revisit the parties’ positions one more time and to draw two conclusions. One: in attempting to buttress a losing argument against Obamacaid, the plaintiff-states may have detracted, unwittingly, from a winning argument against Obamacare’s “health benefit exchanges.” Two: the true problem isn’t Obamacaid’s constitutionality but its pernicious political economy.
Yesterday’s post, on the seemingly unstoppable growth of federal transfer payments to state and local governments, ended on a question: what happens when both parties to the transaction, the states and the feds confront unsustainable commitments? The brilliant answer our federalism has produced: make yet more unsustainable commitments. Why?
In the pending Obamacare litigation, the plaintiff-states argue that Title II of the Affordable Care Act (“Obamacaid”) unconstitutionally “coerces” them to participate in a grand expansion of Medicaid. I’ve argued here and there (link no longer available) that the plaintiffs will and should lose that argument. A terrific amicus brief (link no longer available) by Vanderbilt Law School professor James Blumstein makes a powerful case on the other side.
Ultimately, Jim’s brief doesn’t fully persuade me. But it comes very, very close on account of its recognition that Obamacaid’s crucial problem has to do with the bilateral risk of opportunistic defection from a pre-existing, quasi-contractual relation (Medicaid), not with some “economic coercion” story about federalism’s “balance” and the poor, pitiful states and their faithful public servants. (For ConLaw dorks: the key cases are Pennhurst and Printz, not South Dakota v. Dole or Steward Machine.) I hope to explain sometime next week; today, a few additional remarks on economic coercion.