V. The Supreme Court, the ACA, and Civil Rights

The Supreme Court arguments revealed a divided Court unwilling to talk about health care reform as a civil rights issue, and disinclined to mention EMTALA by name. By all accounts, the Supreme Court arguments were surprising in that they intimated an apparent willingness on the part of the Court's conservative wing to strike down the ACA, despite the belief of most law professors that the law's provisions fell squarely within established Commerce Clause precedent. While commentators chided the Court for introducing hypotheticals regarding the federal government's authority to require individuals to purchase broccoli into oral argument, the fact remains that the concerns of the Court, as manifested in the Court's questions to the advocates arguing before it, were not merely partisan but also reflective of deep-seated philosophical concerns regarding government action. Although the outcome of the case differed somewhat from what the oral arguments foreshadowed, close analysis of those arguments is warranted because the concerns raised at oral argument appeared prominently in the Court's opinions.

A. The Arguments

Advocates argued the two main substantive challenges to the ACA--the challenge to the individual mandate and to the Medicaid expansion--on the second and third days of oral argument, respectively. Given the path of federal legislative enactments up to and through EMTALA, as well as the fact that both the individual mandate and the Medicaid expansion address some of the consequences of EMTALA, it would not have seemed extraordinary for advocates to mention EMTALA by name, to discuss the ACA's potential to address health disparities, or to even talk about health care in the context of civil rights. Unfortunately, this did not happen. Neither the justices nor the advocates mentioned EMTALA by name during oral argument, and all often seemed anxious to avoid opportunities to talk about the statute and its consequences.

1. The Individual Mandate

Seeking to tally votes for a potential majority, much of the news media focused on a particular question asked by Justice Anthony Kennedy:

I understand that we must presume laws are constitutional, but, even so, when you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?

Indeed, they were right to hone in on this dilemma. Justice Kennedy's concern with “changing the relation of the individual to the government”--seen as a deep skepticism about the constitutionality of the ACA--found its way into Justice Roberts's opinion as part of his Commerce Clause analysis. Thus, as it had seemed during oral argument, the government failed to allay Justice Kennedy's concerns.
Beyond Justice Kennedy's telling question, another striking aspect of the second day of oral argument was the amount of time spent questioning counsel about how the cost of guaranteed-issue and community rating would be shifted to healthy young adults who, claimed the justices, would be forced to purchase unnecessary coverage in order to make it possible for older and sicker adults to have health insurance. Justice Kennedy stated that “the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries.” The Court (or at least the conservatives on the Court) seemed to be following an agenda not obviously connected to the case before them. This was evidenced by a burial insurance hypothetical brought forth by Justice Alito, Justice Scalia's insistence that the market being regulated by the ACA was the insurance market and not the health care market, and the question of whether the Tenth Amendment requires that individuals be left to decide whether they want to buy insurance.
Given the fact that none of the individuals in the cases docketed were healthy young people faced with the prospect of buying insurance they neither wanted nor needed, the amount of time spent discussing such situations seemed to be disproportionate at best. Indeed, the amicus brief filed on behalf of the coalition of youth-focused organizations puckishly calling themselves the “Young Invincibles” urged the Court to uphold the ACA as vital to the health of young adults. Furthermore, the amicus brief argued that most young people would like to be able to buy health insurance, but many cannot do so because the cost of coverage is prohibitive.

Nevertheless, nearly a third of the time spent by the Solicitor General arguing on behalf of the government in favor of the individual mandate as an appropriate congressional exercise of the commerce power was spent on these issues. Never once did the Solicitor General or any of the justices note that there was not a plaintiff before the Court who would be affected in the manner that concerned the Court. Justice Kagan came the closest when she suggested to NFIB counsel Michael Carvin that his clients' challenge to the law might be more forceful as an “as-applied” challenge rather than a facial challenge.

This focus on the rights of young people not before the Court also led to some odd exchanges relating to EMTALA, which was never identified by name during the oral argument. It almost appeared that the Court and the litigants focused so much attention on the rights of young people in order to avoid directly addressing the right to health care created by Congress through EMTALA. As noted above, the conservative justices pressed hard on the question of whether Congress was regulating the insurance market or the health care market. The government and the liberal justices contended, much as Judge Sutton did, that the operation of EMTALA makes all individuals' eventual participants in the health care market. That is, every individual who chooses not to buy insurance and then receives care for which she cannot pay affects the cost of health care because of EMTALA-related cost-shifting, which in turn affects the cost of insurance for all those who choose to buy insurance. Thus, there were two primary justifications for the individual mandate argued before the Court: 1) creating a funding stream for the uncompensated care mandated by EMTALA, and 2) broadening the insurance risk pool so that insurance companies could provide coverage to those with pre-existing conditions. The government's decision to not discuss EMTALA directly meant that the oral arguments remained focused on insurance rather than health care, which was friendlier terrain for the challengers given the focus of the Court's conservatives on the insurance market rather than the health care market.

Counsel for the State petitioners, Paul Clement, portrayed the minimum coverage requirement as shifting the costs of insurance from expensive-to-insure sick people to cheap-to-insure healthy people, not as a means of funding the right to health care created by EMTALA. Indeed, he sought to distinguish between EMTALA cost-shifting and the “much bigger” shifting of costs of insurance onto healthy people who are “[forced] into an insurance market precisely because they are healthy.” Michael Carvin, counsel for the NFIB, echoed this sentiment:

Since the founding, whenever Congress has imposed that public responsibility on private actors, it has subsidized it from the Federal Treasury. It has not conscripted a subset of the citizenry and made them subsidize the actors who are being hurt, which is what they're doing here.

They're making young, healthy people subsidize insurance premiums . . . for the cost that the nondiscrimination provisions have put on insurance premiums . . . and insurance companies. This argument ignores some of the American health care system's structural problems, which are magnified by EMTALA. Thus, during oral argument there was no acknowledgement that both the place where one receives care and the type of care received can increase costs that then are shifted onto other market participants. The ACA seeks to address the costs and consequences of EMTALA in a variety of ways, not just through the minimum coverage requirement. By making it possible for the sickest among us to purchase or otherwise obtain insurance, the ACA enables those individuals to access primary care and to receive care for chronic conditions so that they will not need more expensive emergency room care.
This argument, however, seemed lost on the anti-ACA advocates. NFIB counsel Michael Carvin claimed that the number of individuals receiving uncompensated care must be small because “it has got to be a relatively small fraction” of the uninsured that have expensive health care catastrophes. Further, he emphasized that the free riders in the system were those who “default on their health care payments [,] . . . an entirely different activity than being uninsured.” On its face, this seems to be a curious statement-- surely there is a correlation between being uninsured and having to default on one's health care bills. Nevertheless, he maintained that “[t] he people who impose the costs on the rest of us are people who engage in a different activity at a different time, which is defaulting on their health care payments. It's not the uninsured.”
While being scathingly critical of Congress, Carvin avoided criticizing EMTALA directly or challenging the right to receive emergency health care. He did not suggest ending EMTALA; rather, he proposed finding a different source of funding to cover its costs by requiring the purchase of insurance at the point of sale. However, this would not address the problems of the place where one receives care and the type of care received, and therefore would not be as effective or efficient a solution as that provided by the minimum coverage requirement.

Above all, the advocates chose their words carefully when characterizing and discussing the American right to health care created by EMTALA. Carvin and Clement painstakingly attempted to disconnect the services provided pursuant to EMTALA from the individual mandate, and both avoided suggesting that EMTALA should be repealed or that poor people should be denied emergency health care. For his part, the Solicitor General referred to the guarantee of emergency care provided by EMTALA as a “deeply embedded social norm,” but avoided mentioning the statute by name.

This unease reflects the power and pervasiveness of Paul Starr's “American health policy trap” and our ongoing national inability to directly address the consequences of our limited national consensus about health care. No one, other than Justice Scalia, expressed support for Congress ending guaranteed access to emergency care in the United States. As described above, the challengers to the minimum coverage provision tried to act as though that provision of the ACA had no connection to the cost of the right to emergency care. The government, in turn, avoided referring to EMTALA's grant of a right to emergency care as a congressional enactment, lest it be highlighted as an unfunded mandate.

2. The Medicaid Expansion

In 1947, the United States Supreme Court observed that “[t] he offer of benefits to a state by the United States dependent upon cooperation by the state with federal plans, assumedly for the general welfare, is not unusual.” This was an early description of cooperative federalism--the model used to implement and expand federal programs like the Medicaid program. When Congress enacted Medicaid, it invited states to accept federal funding-- payment of half or more of the participating states' total expenditures--in return for the states' promise to develop and implement plans to provide health insurance coverage for specific groups of people for a specific set of medical services. Since 1965, Medicaid has been amended numerous times in order to expand the number of individuals and the array of medical services covered. Yet, until the advent of the ACA, virtually no one had suggested that these expansions raised constitutional questions. In this regard, oral argument again proved to be an accurate barometer of the Court's concerns.

During oral argument, the Court's conservative majority clearly was troubled by the ACA's expansion of Medicaid, even though the federal government would pay almost all of the costs of the expansion under the ACA. The leading Supreme Court case on spending power enactments, South Dakota v. Dole, set forth four limiting factors to be considered when evaluating spending power enactments such as Medicaid: 1) does the exercise of the spending power promote the general welfare?; 2) did Congress “condition the States' receipt of federal funds . . . ‘unambiguously. . ., enabl[ing] the States to exercise their choice [to participate] knowingly, cognizant of the consequences of their participation’[?] ”; 3) are the conditions on the grants of funds related or unrelated to the federal interest in the particular program and its overall objectives?; and 4) are the conditions themselves unconstitutional? The possibility of the federal government withholding all Medicaid funds from a state that chose not to implement the expansion called into question whether, in accordance with Dole, the states could choose to participate knowingly in the expansion, or whether the expansion was too coercive and violated the limits on the spending power set forth in Dole.

Thus, the Court focused primarily on the question of what authority the federal government would have to withhold funds from states that chose not to implement the Medicaid expansion. For example, during the third day of oral arguments, Chief Justice Roberts stated that

it may be something they gave up many decades ago when they decided to live off of Federal funds, but I don't think you can deny that it's a significant authority that we are giving the Federal Government to say you can take away everything if the States don't buy into the next program.

The Chief Justice was overstating the case here because the compliance provision at issue, 42 U.S.C. § 1396c, permits but does not require the federal government to withhold all Medicaid funding from a non-compliant state. Further, that compliance provision has been in place and little used since 1965. Nonetheless, the mere possibility of the federal government withholding all of its Medicaid funding in order to compel a state to comply with either the proposed ACA expansion or some future expansion proved disturbing to the justices, who did not appear to entertain the possibility that states might welcome an expanded Medicaid program that would benefit their uninsured citizens.
Justice Scalia asked: “Is it conceivable to you that any State would have said no to this program? Congress didn't think that, because some of its other provisions are based on the assumption that every single State will be in this thing.” Even more troubling to the Chief Justice than the difficulty of resisting initial entry into the program was the possibility that the federal government might change the terms of the program in later years. Chief Justice Roberts pressed the Solicitor General, saying “you've been emphasizing that the Federal government is going to pay 90 percent of this. And it's not something they can take to the bank, because the next day or the next fiscal year, they can decide we're going to pay a lot less . . . .”

In essence, the focus of the arguments was entirely divorced from any of the key problems that the ACA was intended to address: improving health outcomes by improving access to health care, reducing racial disparities in health care, addressing some of the consequences of EMTALA's requirement that hospitals provide uncompensated care, etc. From the viewpoint of the Court's conservative wing, no state would possibly want to take advantage of the ACA Medicaid expansion to improve the health and productivity of its citizens, not to mention the solvency of its hospital infrastructure, at least not if there were federal rules attached to doing so.

B. Challenging Incrementalism

One way to understand the tenor of the ACA oral arguments, particularly with respect to the Medicaid expansion, is to credit the Court's conservative majority with a distaste for incrementalism. For the purpose of analyzing the Court's approach in the oral arguments, incrementalism may be described as a legislative approach characterized by policy adjustments occurring in multiple steps, as opposed to a single dramatic or sweeping change. At some level, almost every legislative enactment is incremental, as it is rare that legislation is developed, drafted, and adopted from a completely clean slate. The progression of health care legislation discussed in this Article could be characterized as incremental, gradually extending government-supported health care coverage to more and more individuals over the years in an effort to extend equal access to health care to minorities and reduce or eliminate health disparities. Further, the ACA could be described as a collection of incremental changes designed to fill gaps left by prior incremental changes, particularly when compared to other health care reform proposals such as a Canadian-style, government-operated, single-payer system, or “Medicare for All.”

There is no constitutional jurisprudence of incrementalism, nor have concerns about incremental legislation eroding the Tenth Amendment's limit on the spending power played a role in prior cases. However, in an article published prior to the enactment of the ACA, University of Chicago Professor Saul Levmore challenged the conventional notion that incrementalism is a prudent path for lawmakers to take in seeking to address complicated issues, arguing instead that incrementalism enables interest groups to achieve victories above and beyond their political power. As Levmore explained, “[t] he incrementalism problem is that a legal intervention might be both socially inefficient and democratically disfavored yet come about because advocates can nudge the law to that end step-by-step, taking advantage of uncoordinated opponents.” Moreover, “the problem of incrementalism remains more remarkable when compliance with an earlier step in the regulatory process is irreversible.” In other words, every piece of compromise legislation can be viewed, with some suspicion, as both a partial victory taken by interest groups without enough political power to achieve in one enactment their full agenda, and the first step down a slippery slope. Levmore's chief conclusion seems to be not that all incrementalism is bad, but rather that better alternatives exist for cautious legislators--for example, in lieu of implementing a broad, incremental reform, a legislature could test a new regulatory approach by enacting a targeted, time-limited pilot program that might constitute an even more radical policy change.

The ACA arguments on the minimum coverage provision revealed a conservative Supreme Court majority that certainly seemed to share Levmore's concerns with the problems of incrementalism. For example, Levmore contends that incrementalism can be seen “as a problem of nondisclosure, or even as a kind of fraud.” In line with this theme, Justice Kennedy criticized the individual mandate, noting that “[i] n one sense, it can be argued if this [[taxing citizens in order to fund a national health insurance system] is what the government is doing, it ought to be honest about the power that it's using and use the correct power.” Thus, in this and other instances, the conservative justices appeared to chide the government for not having the courage or the votes to implement a simpler system, hinting that a simpler system might not have been so fraught with constitutional peril. Picking up on these hints, Justice Ginsburg was inspired to remark “[t] here's something very odd about that, that the government can take over the whole thing and we all say, oh, yes, that's fine. But if the government wants to get -- to preserve private insurers, it can't do that.”

The conservative justices' concerns with incrementalism may have been even more evident in the arguments concerning the Medicaid expansion than in the arguments over the minimum coverage provision --“[t] he Medicaid expansion was significant, but was clearly an incrementalist modification to the existing program.” Even more significantly, to use Levmore's parlance, Medicaid may be the ultimate irreversible program. This clearly bothered Chief Justice Roberts and Justice Kennedy. Hospitals and nursing homes depend on Medicaid as a part of their financing mix--no state goes without it, or as Justice Kennedy put it during oral argument, states are “frozen in.” Thus, the “irreversibility” of the Medicaid program engendered the question of whether an incrementalist modification could be coercive.

What the Court's conservatives seem to have missed, theoretically speaking, is Levmore's contention that incremental changes are undesirable, primarily if they are made in such a way that experimentation and learning cannot take place. However, experimentation and learning have been hallmarks of the Medicaid program. Over its history, the Medicaid program has been characterized by a series of optional expansions that eventually became requirements once generally accepted by states. While the expansions have tended not to be reversed, there is no evidence that any of the expansions would not withstand cost-benefit analysis. Indeed, there was no colloquy during oral argument on Medicaid's failures or suggestion that expanding Medicaid would not produce better health outcomes. Instead, there was only the speculative fear, articulated by Justice Roberts, that states might one day in the future have to pay more for those improved outcomes.

C. The Court's Opinion

On June 28, 2012, the Supreme Court issued its decision in NFIB v. Sebelius. In an opinion written by Chief Justice Roberts and joined by Justices Ginsburg, Kagan, Breyer, and Sotomayor, the Court upheld the individual mandate as a valid exercise of the taxing power and upheld the Medicaid expansion as a valid exercise of the spending power, provided that it is optional and not mandatory for the states. Ultimately, the Court's concerns about incrementalism seem to have prevailed in theme and language, if not results. Despite the apparent agreement of five justices that the mandate provision exceeded the authority granted to Congress by the commerce power, the mandate was upheld, surprising most commentators. Indeed, this was reflected in the confusion that arose when the decision was issued--two news networks reported that the mandate had been struck down based on Chief Justice Roberts's Commerce Clause analysis in his opinion. Even the President was said to have thought, for a brief period of time, based on erroneous news reports, that the Supreme Court had struck down the Act as unconstitutional.

However, as further analysis of the opinions revealed that the Court had upheld the ACA but rejected the government's Commerce Clause analysis, and turned the statute's Medicaid expansion into an optional program, it became clear that the concerns expressed by the Court's conservative wing during oral argument had accurately foreshadowed the opinions that would be written. While the Court's opinions certainly did nothing to limit Congress's taxing power, they clearly acknowledged and validated the concerns previously expressed as to the scope of the commerce power and the irreversibility of the Medicaid program. Finally, the Court continued to avoid discussion of EMTALA and its implications, with each of the three opinions issued by the justices referencing it only once, and only the dissenters mentioning it by name.

Perhaps this is not surprising, given the advocates' reluctance to discuss EMTALA during oral arguments. Nevertheless, the Court's scant references to EMTALA suggest that in evaluating the ACA, the Court chose not to examine a critical justification for its existence--the fact that it was intended to address some of our country's unfinished business on civil rights and had the potential “to do enormous good for the health needs of racial and ethnic minorities and [do more] to reduce racial and ethnic health disparities than any other law in living memory.” The fact that the advocates who argued to uphold the law largely failed to raise this issue is disappointing, if not inexplicable.

1. The Individual Mandate

Justice Roberts first found that the individual mandate could not be authorized by the commerce power, citing his accord with the case's four dissenters-- Justices Scalia, Kennedy, Thomas, and Alito. In doing so, he returned to Justice Kennedy's concern about regulating “what we do not do” and fundamentally changing the relationship between the citizen and the federal government. Commentators have cast doubt on the claim that Congress has never regulated inactivity. Nevertheless, Justice Roberts made the distinction between activity and inactivity central to his Commerce Clause analysis.

This distinction is worth examining in light of this Article's emphasis on EMTALA and civil rights. First, by definition and by design, most anti-discrimination laws change the relationship between the citizen and the government. Through anti-discrimination laws, the government limits the associational choices of its citizens. Second, much of what is regulated by anti-discrimination laws could be characterized as inactivity--not hiring a prospective employee, not serving a potential patron at a business, or not renting to a prospective tenant.

Despite these issues, Chief Justice Roberts quickly distinguished civil rights cases such as Katzenbach v. McClung and Heart of Atlanta Motel, Inc. v. United States. Somewhat unconvincingly, he asserted that those cases involved regulation of activities (operating restaurants and hotels, respectively) with anticipated effects on commerce, whereas the ACA seeks to regulate anticipated activity (the purchase of health care). It remains an open question as to whether he would have drawn this distinction so easily if forced to acknowledge that the ACA was civil rights legislation, and further, that the individual mandate was intended to address the economic effects of discrimination, just as the economic effects of discrimination were at issue in Katzenbach and Heart of Atlanta.

Ultimately, the owners of the restaurants and motels affected by the provisions of Title II of the Civil Rights Act of 1964 at issue in Katzenbach and Heart of Atlanta had their relationship with the federal government fundamentally altered because the government began to dictate who they must serve, which required them to engage in commerce with people of all races. Like the ACA, Title II required the owners to engage in commercial activities they wished to avoid in order to remedy “the disruptive effect that racial discrimination has had on commercial intercourse.” Moreover, when Congress enacted Title II of the Civil Rights Act of 1964, it sought to do more than affect the behavior of business owners; it also sought to change the behavior of their customers. By forcing businesses to desegregate, Congress forced their customers to patronize or support desegregated businesses by taking away their ability to choose not to support desegregated businesses, thereby regulating an anticipated activity.

In light of the consequences of EMTALA, one can describe the effects of the ACA in similar terms. EMTALA requires hospital emergency departments to serve all those who present with medical emergencies, regardless of race or ability to pay. Through the individual mandate, the ACA requires individuals to support those desegregated emergency departments by guaranteeing payment for services. As in Katzenbach and Heart of Atlanta, Congress has taken away the individual's ability to choose not to support a desegregated business--in this case, a hospital emergency department.

In an article arguing against the constitutionality of the individual mandate, Ilya Somin suggests that the mandate may lead to an unstoppable “mandate for mandates.” In doing so, he specifically addresses the government's justification for the individual mandate, raising the question of whether health insurance is a special case. Ultimately, he confronts the fact that health care providers are required to provide emergency treatment to the uninsured and asks: “[b] ut why is that difference constitutionally relevant?” One could respond that the difference is constitutionally relevant because EMTALA, the federal statute requiring such emergency treatment, is a civil rights statute, and, at least since Reconstruction, civil rights traditionally have been a federal concern. Thus, the ACA's efforts to address one of the economic harms caused by discrimination place it squarely within Congress's commerce power.

2. The Medicaid Expansion

An equally surprising aspect of the decision in NFIB v. Sebelius was the Court's 7-2 ruling that the ACA's expansion of Medicaid to cover all non-disabled and non-elderly adults up to 133% of the federal poverty level would be unconstitutional unless determined to be optional by the Court. The ruling was surprising for a number of reasons. First, even Republican governors had not expected to win on this issue, having lost in the lower courts. Second, the justices did not divide along presumed ideological lines, with Justices Kagan and Breyer joining the conservative majority that found the Medicaid expansion to be unconstitutionally coercive on the states. Third, because it makes the Medicaid expansion optional for the states, the Court's ruling may mark the end of Congress's ability to use Medicaid to implement national health policy.

Justice Roberts's insistence that the Medicaid expansion reflects a difference “in kind” of program, “not merely degree,” is most striking. He concluded that the expansion could not be viewed as part of the old Medicaid program, but must be seen as an entirely new program. This is Levmore's concern about irreversibility writ large. By linking the ACA's Medicaid expansion to funding for the existing, largely irreversible version of the Medicaid program, Congress, in Justice Roberts's view, reached a result that the states never would have accepted when they originally signed up for the Medicaid program.

In terms of spending power jurisprudence, the Roberts opinion implicates two of the limits articulated in Dole, clear notice and germaneness, but fails to convincingly attribute its conclusion to either. First, as to notice, Chief Justice Roberts emphasized that states must voluntarily and knowingly accept the federal funds offered pursuant to the spending power. This requires that the states be given clear notice, which, as Justice Ginsburg found in her dissent, the ACA and the Medicaid Act clearly did. The ACA itself was enacted in 2010, with states having until January 1, 2014 to implement the Medicaid expansion. In addition, Congress explicitly retained for itself the right to amend Medicaid when it was enacted in 1965, and has continued to maintain that right. Thus, while states may not have anticipated that Medicaid would become as large and influential a program as it has become, it cannot seriously be argued that the states were not aware that the federal government could alter Medicaid program requirements or that they were not given sufficient time to plan for the ACA's Medicaid expansion.

Turning to the germaneness question, Chief Justice Roberts claimed that the Medicaid expansion was a new form of Medicaid that was “no longer a program to care for the neediest among us, but rather an element of a comprehensive national plan to provide universal health insurance coverage.” Furthermore, “[a] state could hardly anticipate that Congress's reservation of the right to ‘alter’ or ‘amend’ the Medicaid program included the power to transform it so dramatically.” Thus, given the size of the expansion and the entrenched nature of the Medicaid program in most state budgets, clear notice either was irrelevant or impossible.

This conclusion ignores even recent Medicaid history. States are authorized to obtain federal funding to implement Medicaid demonstration projects. By 2008, eighteen states had elected to use this authority to provide coverage to non-disabled and non-elderly adults. Indeed, in making the argument that the Medicaid expansion is an entirely new program, not merely an extension of an existing one, Justice Roberts cited the very provision that links the Medicaid expansion to those state demonstration projects. The ACA would have transformed those demonstration projects into a mandatory requirement, creating some national uniformity in Medicaid coverage, while providing historically high amounts of federal matching funds to pay for the expanded coverage.

Commentators have criticized Chief Justice Roberts for “[a] rtificially slicing Medicaid in two” in order to conclude that funds for the existing Medicaid program were not related to the expansion, implicating Dole's germaneness limitation, and for failing to articulate “any kind of rule, test, standard, method, or other structure for understanding coercion beyond the facts of NFIB.” While these criticisms certainly are accurate, they tend to obscure what came through both at oral argument and in Chief Justice Roberts's opinion: in addition to the limitations set forth in Dole, the Court's conservative wing sees the irreversibility of a large, entrenched government program like Medicaid as a limit on the spending power. Hence, rather than crafting an opinion that hewed closely to the Dole factors and their application to the case at hand, Chief Justice Roberts resorted merely to incendiary language, describing the Medicaid expansion as “economic dragooning” and a “gun to the head,” to express its rationale. As a consequence, the Court's failure to define impermissible coercion leaves open a multitude of questions as to the future of the Medicaid program and the implementation of the ACA itself.

Whether an expanded and more uniform national Medicaid program will eventually develop has become the subject of much speculation. It seems likely that most states will participate in the expansion. However, that is a limited victory compared to what might have been. Reform advocates intended not just to add to Medicaid but to transform it:

If Title II [of the ACA] is implemented as written, by 2014, there will be near-uniform Medicaid eligibility across the nation, a single method to calculate income to determine eligibility, and no more categorical distinctions. Officials involved in implementation believe the program will begin to look different in many basic ways. No longer a program of “last resort,” Medicaid will be open to nearly everyone with family incomes below 133 percent of the federal poverty level. A substantial bump in federal support means the program will be run differently.

It is harder to imagine this vision of the Medicaid program developing out of an optional expansion. Disappointingly, the Court proceeded as though it needed to discourage a long pattern of congressional overregulation of the states. In fact, the opposite is true. Further, history suggests a congressional tendency to leave substantial discretion to the states in implementing the requirements of the Medicaid program. Indeed, Medicaid's state-based administration, poor reputation, and lower rate of payment have prevented it from becoming a “coherent and unified force for health system reform.” The Court's ruling upends cooperative federalism as a way for Congress to implement national programs and, in this case, address health disparities. Now that the Medicaid program has been effectively deemed “too big to amend,” the Court's decision may well keep Medicaid forever mired in its status as the least desirable form of governmental health coverage, even as it consumes an ever larger share of state budgets.