On Medicaid, Supreme Court Drew False Distinction

Today, the Supreme Court upheld much of the Patient Protection and Affordable Care Act. That the law is considered bold in conception and unprecedented in scope is an indictment of our sense of ambition and a sad commentary on our political imagination. Nevertheless, the law will extend health-care coverage to tens of millions of uninsured Americans, even if it falls short of solving the structural problems in our health-care system.

David Sachs/SEIU

Supporters of Medicaid rally on Capitol Hill on Sept. 21, 2011.

While today's ruling keeps much of the law intact, including the controversial individual mandate, its implications for Medicaid could seriously cripple the effect of the legislation. Those implications arise from a strange case of line-drawing by the court.

The decision was clearly a grand and uncomfortable compromise. Representing the two wings of the majority were Chief Justice John Roberts and Justice Ruth Bader Ginsburg. Although the two agreed on quite a bit, the Medicaid expansion was a point of powerful conflict.

Medicaid is co-administered with state governments. The federal government fronts the lion's share of the money and sets requirements, but the states are free to structure their programs in any way that meets those requirements. The Affordable Care Act changed the rules, stipulating that states must extend coverage to people earning up to 133 percent of the federal poverty level or risk losing all existing Medicaid funding.

Roberts led the court in striking down this provision, permitting the federal government to withhold only the additional funds for expansion from states that choose not to participate. That is, the government cannot threaten to withdraw all Medicaid funds from states who do not comply with the additional requirements.

Roberts’ argument hinges on the idea that there is something qualitatively different about the new requirements. The Medicaid expansion, he argued, is more than a change in the details. It accomplishes “a shift in kind, not merely degree.” He concedes that the government reserves the right to alter the provisions — as it has done before — but only in a way that fits with the original purpose of the program. If the changes are so large that the states could not have anticipated them, then they constitute, in Roberts’ view, an unconstitutional coercion on the part of the federal government.

According to Roberts, the original purpose of Medicaid was to provide health care for four groups: “the disabled, the blind, the elderly, and needy families with dependent children.” Does Roberts really imagine that these are coherent categories that define the objectives of Medicaid? More likely, he is adopting the convenience of sharp categories, even where the facts don't support it.

The four Medicaid categories reflect the program’s circuitous legal history. Medicaid and Medicare are the result of a 1965 amendment to the Social Security Act. As it was originally passed in 1935, the Social Security Act contained general provisions for unemployment and public health, plus aid to four specific groups. Those groups were — you guessed it — the disabled, the blind, the elderly, and needy families with dependent children.

If Roberts is right, then these four groups should have been included for a defining reason. The underlying logic of their selection would explain why they are special and why states should expect Medicaid to be delimited by these categories instead of a broader mission to help the poor. But there is no defining reason. There is no underlying logic.

Consider the inclusion of the blind. In 1936, two advocates for the blind, Robert Irwin and Evelyn McKay, wrote an article cataloguing the history of benefits for the blind in the United States. They described the events that led to the Social Security Act’s Title X, which provides federal aid to support state programs for the benefit of the blind.

When the social security bill was introduced in Congress, the structure of a proposed program for crippled children caught the attention of activists for the blind. This program was worded to provide support services and opportunities for these children rather than simple transfer payments. The activists were looking for a similar mechanism to avoid creating dependency amongst the blind, so they took the opportunity to canvass for a parallel amendment. To the chagrin of the activists, the final law ended up including transfer payments instead of the support services they preferred — such is the circuitous nature of legislation, fraught with schemes and angles, raised hopes and thwarted propositions.

Importantly, this is not a story of a coherent vision for the support of specific groups. Instead, it's a story of servicing a general goal — supporting the poor — through targeted strategies.

Even John Roberts would seem to agree. In his opinion, Roberts describes Medicaid as a program “to care for the neediest among us.” But according to him, extending benefits to everyone earning less than 133 percent of the federal poverty level somehow erodes that purpose. As Justice Ginsburg retorts, those who earn less than $14,856 per year “surely rank among the Nation's poor."

The categories of Medicaid beneficiaries that existed before the Affordable Care Act were accidental — instrumental at best. They reflected the machinations of politics and circumstance and compromise, in service of a project to “care for,” as Roberts would say, “the neediest among us.” The chief justice knows that. But he resorted to drawing specious bright lines to justify the unavoidable murkiness of his position.

Legal judgment and policy making are hard; the calls are fuzzy and sometimes arbitrary. As a result, it’s easy to succumb to the temptation of false distinctions. Here’s the truth: Helping more poor people access Medicaid isn't a radical change to the program. It might be an unfair burden on the states or an irresponsible fiscal decision, but that wasn't the argument that Roberts made. His argument, imprecise and misleading, may captivate a few partisans, but it is ultimately an insult to his staggering intellect and America's common sense.

Prajwal Ciryam is co-founder of and senior editor at Partisans. He was a Fulbright Scholar to the United Kingdom, based at the University of Cambridge. He is a Ph.D. candidate studying neurodegenerative diseases concurrently at Cambridge and Northwestern University, and a medical student at Northwestern.