Sunday, March 25, 2012
An ACA Amicus Brief Worth Reading: The SEIU on the Medicaid Coercion Question
As Eric Lichtblau's front-page story in today's New York Times suggests, the Supreme Court has been a bit oversaturated with amicus briefs in the ACA litigation, to the tune of 136 briefs (on top of the extensive briefing by the parties themselves) on the four issues the Justices will consider this week. Given that staggering number, and the very real likelihood that exceedingly few of those amicus briefs will therefore be given careful consideration, I thought I'd write to flag one particular brief that, to my mind, truly stands out: The brief of the SEIU on the Medicaid coercion question--the part of the cert. grant that, to me at least, makes the least sense. Below the fold, I offer some reflections on the parties' briefing, and why the SEIU brief, in my view, makes such an important and noteworthy contribution.
I. The Issue and the Parties' Framing
At SCOTUSblog, Lyle Denniston has a typically comprehensive discussion of the Medicaid question in "Part IV" of his ACA argument preview. Suffice it to say, the issue is whether the expansion of Medicaid eligibility in the ACA, which the parties agree would be severable from the rest of the bill if the minimum essential coverage provision were invalidated, itself violates the Tenth Amendment by "coercing" the states--along the lines Chief Justice Rehnquist hinted at in his majority opinion in South Dakota v. Dole. Arguing that "this coercion challenge is in a class of its own," the states' principal contention is that the ACA did not really present states with a choice when it came to accepting the expansion in Medicaid eligiblity. Yes, states could simply opt out of Medicaid, but the reality of current economic and budgetary constraints belies the feasibility of such an option.
In its briefing, the federal government's response strikes me as fairly tame, focusing on the extent to which the federal government, and not the states, will bear virtually all of the new economic burden imposed by the expansion in Medicaid eligibility. As the brief explains,
From 2014 through 2016, the federal government will pay 100% of the costs of providing medical assistance associated with the extension of eligibility. That amount will gradually decrease, to 95% in 2017, 94% in 2018, and 93% in 2019. In 2020 and thereafter, the federal government will pay 90% of these costs. That level of support significantly exceeds the typical federal contribution rates, which range from 50% to 83% of a State’s Medicaid expenditures and which have generally averaged 57%.
These statistics are telling not just because they belie the states' claim that the expansion in Medicaid eligibility will impose a particularly onerous (and coercive) burden on them (later on, the government's brief suggests that the expansion in Medicaid eligiblity may actually save states money in the long term), but because they also help identify the real stopping-point of the states' argument, i.e., that Medicaid itself is unconstitutionally coercive. True, the states don't ever actually suggest as much (per the "class of its own" line quoted above), but it's hard to see how a limited expansion in Medicaid eligibility (for which the federal government is almost entirely financially responsible) could violate the Tenth Amendment when Medicaid itself doesn't.
The states' answer, such as it is, is that they have become so dependent upon Medicaid funding that they're in no position meaningfully to evaluate the merits of any expansion in Medicaid eligibility--that Medicaid itself may not be coercive, but any mandatory change to its scope is. Although the states stop short of framing Medicaid as a "vested right," the crux of their argument is that Medicaid has created a form of functional dependency on federal funding, which is why expansions like that created by the ACA don't really give states a "choice."
II. The SEIU Brief and the Unconvincing Distinction Between the ACA and Medicaid Itself
Enter, the SEIU amicus brief, which can fairly be described as rejecting the feasibility of the distinction the states try to articulate, i.e., that there is a "constitutionally relevant and judicially manageable distinction between the pre-existing federal spending program [the states] desire to continue and the expanded program they challenge." In far more detail than the federal government's brief (which, to be fair, had other fish to fry), the SEIU brief focuses on the necessary implication of the states' argument--that Medicaid has in effect become a "vested right," and that, while the original program may itself be permissible, the expansion is necessarily coercive.
Thus, the SEIU brief proceeds to make three points: First, there is no precedent supporting the idea that states "gain a 'vested' or otherwise constitutionally protected interest in the continuation of a federal-state cooperative spending program after Congress determines that continued federal subsidization of such a program is no longer its preferred course." Indeed, the Supplemental Security Income (SSI) program stands as decisive proof to the contrary, since Congress in 1972 converted it from a cooperative federal-state spending program to a solely federal spending program.
Second, precedent aside,
Petitioners essentially argue that States face tremendous political pressures from their own residents to provide similar benefits to those in pre-expansion Medicaid, but would face difficulties in doing so absent federal funds because increasing local taxes would be politically intolerable. Judging these assertions in any meaningful way, if they were deemed legally relevant, would enmesh the judiciary in evaluating the relative strengths of various local political pressures and the relative merits of possible political tradeoffs.
For a host of reasons, the brief explains, courts are ill-equipped to enter into such a "realm of quintessentially political decision-making regarding the relative importance and inter-relationship of different aspects of a federal spending program that Congress has linked together as necessary to promote the general welfare."
Third, and most tellingly, accepting the states' argument "not only would treat the States in a manner highly inconsistent with the constitutional plan — i.e., treat them as dependent entities in need of forced federal assistance, secured by judicial intervention — but it also would mean that Congress’ authority to define the scope of the programs it is willing to fund is limited by either the States’ present desires or the spending decisions of prior Congresses." But as the brief argues, clearly, Congress could terminate the Medicaid program in its entirety, and then create a brand-new program that is virtually identical to the current Medicaid program as expanded by the ACA. If both of those steps are constitutionally permissible, where is the flaw, here?
Whatever else one might say about the minimum essential coverage provision, or the ACA litigation more generally, I've never been particularly convinced that the Medicaid challenge is a serious one--and the SEIU brief, to my mind, goes a long way toward explaining why. At the end of the day, I have to think that the only chance the states have at succeeding on this claim is to convince the Court that it can meaningfully be distinghished from a challenge to Medicaid, writ large. There may be folks out there who don't think this distinction matters because Medicaid itself, in their view, raises similar constitutional concerns. However plausible this argument is descriptively, I think it's a non-starter before this--or any other--Supreme Court. Ultimately, then, if the SEIU brief does nothing else, it rather conclusively proves why the distinction on which the states have seized ultimately fails to persuade. But that may be the only point that matters...
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As someone who has previously criticized the medicaid challenge, I nonetheless had a very different reaction to the SEIU brief. I found it useless. As everyone seems to acknowledge, the basic conceptual foundation of "undue" coercion is a kind of congruence and proportionality test between the conduct being demanded and the threatened penalty. Now, the SEIU brief comes in and says that, as a matter of high theory, we can always view the numerator in this equation (i.e. the conduct demanded) as all the strings that are attached rather than the marginal increment, since Congress can always repeal the whole medicaid program and then reenact it with the old strings and the new strings. By increasing the numerator this way, then nothing ever becomes unduly coercive. And perhaps as a strict matter of logical reasoning they are right.
But it completely misunderstands what is going on in this dispute. The question in this case is not logic, it is whether the conservative wing of the court can draw a semi-coherent line on what constitutes "undue" coercion without striking down all of Medicaid. And saying that Congress can (but almost certainly won't) come back and reenact the same program by repealing medicaid and then reenacting the whole thing with the new strings is not a deterrent to any degree. This is the same as how saying that Congress could reenact the individual mandate as an explicit tax is the most useless (as in likely to work on these particular decision makers) argument in the whole affair.
Posted by: TJ | Mar 25, 2012 1:31:01 PM
TJ -- I agreed with your take way back when, and still do, but wonder if the SEIU brief isn't there to play the exact role you suggest, i.e., to explain (especially to the conservatives on the Court) why they can't draw such a "semi-coherent" line and put the Medicaid expansion and Medicaid itself on opposite sides thereof.
It could just be me not following, but I take the thrust of the SEIU brief to be an attempt to offer the clearest explanation for how the states would differentiate between the coercive nature of the Medicaid expansion and Medicaid itself, and then articulate what it would mean if the distinction to which the states advert were actually converted into constitutional doctrine. The point is not that Congress could then accomplish through the back-door that which it couldn't accomplish through the front; rather, it's that it would be unworkable if states could exercise the kind of control over Spending Clause programs that would have to follow from such a conclusion...
Posted by: Steve Vladeck | Mar 25, 2012 4:40:25 PM
Well, maybe they are doing that, but I find their way of doing it to be extremely confusing. Let me explain.
The challengers to the ACA had a really simple argument going in: (1) the test is whether something is "unduly" coercive, (2) threatening to deprive a state of Medicaid funding is super, incredibly, unsurpassably coercive, and (3) therefore, it is unduly coercive. Two points to make here: (a) this had the problem of invalidating Medicaid, and (b) the problem with the line-drawing--the "incoherence" of the line--is the question of "how coercive is coercive enough?"
In response to this problem Paul Clement did something that was totally brilliant and totally sneaky. He transformed the question of "undue" coercion from a question of "how coercive is the penalty?" to a question of "how coercive is the penalty in comparison to the action demanded?" But he spends most of his brief kind of contradicting this move, because his main argument is that threatening to deprive a state of Medicare funding is incredibly coercive (without mentioning the congruence and proportionality move that is key).
SEIU's brief, as I read it, basically buys into Clement's framing, and does not talk about the sleight of hand contradiction. Rather, it only argues that the "comparison" could always be conceptualized as including all of Medicaid. But the simple answer to Clement's move should have been "congruence and proportionality is simply not what 'undue coercion' is about" and not "here is how you can find the ACA congruent and proportional using a manner of reasoning (playing with the 'action demanded') that is highly counter-intuitive even if logically coherent." I read the SEIU brief to say the latter; maybe that is just me.
Posted by: TJ | Mar 25, 2012 6:59:25 PM
Reading what I just posted, it still seems confusing. My point is that the line that is difficult to draw coherently is "how coercive is coercive enough." SEIU is hurting itself by arguing that that coerciveness cannot be judged by how popular and important a program is.
Rather, the real argument should be that (1) the test is how popular and important a program is, (2) no program is more popular or important than Medicaid, and (3) the Court does not have the guts to strike Medicaid. Therefore, (4) it cannot strike anything else. SEIU does not have the guts to make the argument explicit; and nor does Clement. But that is the real issue.
Posted by: TJ | Mar 25, 2012 7:11:56 PM
I can't say I really understand TJ's point(s), but it seems to me the main thrust of the SEIU brief is that any exercise in which one pretends that there determinable numerators, denominators, and so forth is ridiculous. It's impossible to do a congruency analysis because there is no sensible underlying theory of either coercion or congruency. (And, by the way, I particularly don't understand TJ's claim that "everyone" acknowledges that coercion is about some kind of congruency analysis -- congruency of what to what?) Nor is there a sensible theory that could be constructed.
I'm also not sure by what theory of briefcraft a document is useless because it fails to call the court gutless. If the point is that pointing out the political consequences of a decision can be useful, well, the brief does a lot of that (e.g., in pointing out that it would be very difficult to constuct a ruling for challengers here that would not call into question Lau v. Nichols (i.e., Title VI and Title IX) and Steward (i.e., Social Security & unemployment insurance)).
Posted by: BDG | Mar 26, 2012 11:13:05 AM
I agree that "the main thrust of the SEIU brief is that any exercise in which one pretends that there determinable numerators" or denominators is logically incoherent. My response is that they might be right as strict matter of logic, but I don't think they convince people who are not already inclined to be convinced that it is so incoherent as to be embarrassing. We have lots of "lines" in law that are logically incoherent but nonetheless intuitively appealing, such as we say that there is always a duty of reasonable care subject to exceptions, but logically we can also say that there is no duty unless the defendant is in a situation where he must take care. A conservative justice can simply reply to the SEIU that the congruency analysis in this case compares the new ACA strings against the entire Medicaid funding; and yes that is logically problematic and manipulable in future cases, but it is not a statement that is so obviously embarrassing that the court cannot do it. And I think "obviously embarrassing" is the realist standard when you are trying to shove something down the throat of an uncooperative justice.
My point about everyone acknowledging coercion as a congruency analysis is to show why SEIU are bad advocates. Clement's brilliance is to frame this as a congruency analysis between the penalty threatened (loss of all Medicaid funding) with the action demanded (which he further frames as the marginal incremental conditions demanded rather than all of a State's Medicaid obligations). The result of this framing for Clement is that the ACA seems to threaten a gigantic penalty for a small demand, akin to imposing the death penalty for a parking infraction. SEIU's response is that the last part of the move--the further framing of the issue as the marginal increment--can be logically manipulated. But this was the easiest part for Clement (per the point above). The most counter-intuitive and obviously embarrassing part of Clement's argument was that we should judge coercion by a comparison rather than by measuring the penalty simplicitur--threatening the death penalty is equally coercive whether we impose it against murder or against parking infractions. But SEIU failed to call him out on this.
And I am not saying that SEIU should call the court gutless. My point, hopefully made clearer by the above, is that (1) it fails to engage the important issues (judging coercion by the penalty alone, and then raising the question of how coercive is coercive enough), and (2) on the issue it does engage (can you have a coherent numerator), it fails to convince. Clement dodges the issues described in (1) because it is a losing argument for him. SEIU has no such excuse.
Posted by: TJ | Mar 26, 2012 11:46:48 AM
I highly recommend Marty Lederman's analysis of this issue over at Balkinization: http://balkin.blogspot.com/2012/03/states-extraordinary-medicaid-challenge.html
Posted by: Sam Bagenstos | Mar 27, 2012 8:25:06 AM
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