Seems that Kennedy has given an impression that he thinks that one of the two interpretations is unconstitutional, and that he may therefore choose the other and rule for the government. It’s hard for me to understand that. The reason he says it’s unconstitutional is because he already struck down a similar part of the same law about Medicaid. Why should we or he assume that Congress avoided that same unconstitutionality in a different clause?
The ACA as written expanded Medicaid, giving states the choice of either accepting the expanded program or withdrawing from Medicaid entirely. SCOTUS ruled in 2012 that this was too coercive, that the federal government couldn’t threaten to withdraw all Medicaid funding if states didn’t accept the expanded program. As a result, states today only give up the funding for the new ACA expansion, not all of Medicaid, when they decline the expansion.
The King plaintiffs argue that the ACA forces states to set up their own exchanges or else make their residents ineligible for subsidies. Without subsidies the individual insurance markets will go into a death spiral, with much higher premiums. Kennedy asked whether this reading was another example of unconstitutional federal coercion: the feds saying, in effect, either set up an exchange or we’ll destroy the insurance market in your state. That would be a reason to rule against the King plaintiffs, i.e. to say “yes, the law says what you claim, but what you claim is unconstitutional, so the government must implement the law as if it didn’t make subsidies conditional on the establishment of a state-run exchange.” Which is how the law is being implemented today.
It would be ironic if the same doctrine that made Medicaid expansion optional, greatly weakening the law’s effectiveness in about half the states, were to be invoked to protect the law from further weakening.
Seems that Kennedy has given an impression that he thinks that one of the two interpretations is unconstitutional, and that he may therefore choose the other and rule for the government. It’s hard for me to understand that. The reason he says it’s unconstitutional is because he already struck down a similar part of the same law about Medicaid. Why should we or he assume that Congress avoided that same unconstitutionality in a different clause?
The ACA as written expanded Medicaid, giving states the choice of either accepting the expanded program or withdrawing from Medicaid entirely. SCOTUS ruled in 2012 that this was too coercive, that the federal government couldn’t threaten to withdraw all Medicaid funding if states didn’t accept the expanded program. As a result, states today only give up the funding for the new ACA expansion, not all of Medicaid, when they decline the expansion.
The King plaintiffs argue that the ACA forces states to set up their own exchanges or else make their residents ineligible for subsidies. Without subsidies the individual insurance markets will go into a death spiral, with much higher premiums. Kennedy asked whether this reading was another example of unconstitutional federal coercion: the feds saying, in effect, either set up an exchange or we’ll destroy the insurance market in your state. That would be a reason to rule against the King plaintiffs, i.e. to say “yes, the law says what you claim, but what you claim is unconstitutional, so the government must implement the law as if it didn’t make subsidies conditional on the establishment of a state-run exchange.” Which is how the law is being implemented today.
It would be ironic if the same doctrine that made Medicaid expansion optional, greatly weakening the law’s effectiveness in about half the states, were to be invoked to protect the law from further weakening.