Define "No Choice"

The lynchpin of the argument, accepted by all but two (awesome) Justices of the Supreme Court, that the Affordable Care Act's expansion of Medicaid was unconstitutional is the idea that Congress cannot "coerce" states into adopting such-and-such a policy by threatening to withhold funds. It cannot leave states "no choice" in the matter. The test implied is that very modest financial incentives are okay, but larger ones are not, or, in this case in particular, that incentives involving the removal of funds currently given to states and upon which those states currently rely are not acceptable. But this criterion does not sit well with the simple fact that this case concerned very specifically federally-imposed conditions on the spending of specific federal dollars for a specific program. Yes, states rely on Medicaid funding. What do they rely upon Medicaid funding for? Medicaid! If a state fails to comply with Congress' conditions for Medicaid programs, they lose their Medicaid funding, but they also lose their Medicaid expenses, because they lose their Medicaid program. The part of a state's budget that isn't Medicaid is left untouched. Everything the state does aside from Medicaid, that is, has not been threatened.

Now, it's true, as Justice Ginsburg's awesome partial concurrence, partial dissent (and the dissent is really the best part) points out, that state officials rendering actual judgments as to whether or not to accept the new conditions and get the new funds do not actually have much of a choice. But that's just because Medicaid is such an obviously sweet deal that voters in every single state, from Vermont to Wyoming, would throw their state elected officials out of office ASAP if they decided to opt out of Medicaid. But that's not a gun to the head! This is "not having a choice" in the same way I wouldn't have a choice if you offered me $1,000,000 on the condition that I said "thank you" afterwards. It's bloody obvious that I'll be better off, and spectacularly so, if I accept. No rational person could choose to decline. Likewise, no rational state could choose to decline to accept the Medicaid funds. But Congress is not threatening, in order to get states to run the Medicaid program the way Congress wants, to make non-complying states worse off than they would have been if Medicaid didn't exist.

Now, if the federal government routinely paid for 50% of each state's budget, by simply handing over that much money and telling the states to use it to pay for stuff, and then attached conditions saying, oh, and by the way, if you don't pass laws X, Y, and Z we'll cut your funding off, that would be coercion. Those federal dollars would have become intertwined in everything the state does, and the loss of them would present the state with only two choices: double state taxes, or halve state services. That's a gun to the head. And that's why the crucial difference between conditioning funds on meeting certain requirements about how you spend those specific dollars and conditioning funds on unrelated policy is so important. A state that decides not to comply with the new Medicaid provisions will stop having Medicaid, or perhaps it could choose to raise sufficient taxes to run a Medicaid-esque program by itself. But the simple fact that the Medicaid program is such a large portion of states' budgets, and that federal funds for it are such a large portion of state revenues, does not mean that states depend on those funds. It means Medicaid is a big, expensive program. As it happens, people like Medicaid, and will want to keep it quite a lot, even if that means accepting new conditions. But it's not something they were doing before Congress came along that Congress is now threatening to interfere with.



Oh, and by the way, the fact that the political choice between having Medicaid with the new conditions and not having Medicaid at all is such an obvious one is a good example of why the Court's idiotic "accountability" analysis is so idiotic in the first place. The entire point is that people really like Medicaid! They're not looking to hand out accountability, because they're happy. If this weren't the case, then state officials would have a legitimate choice as to whether to accept the new funds. If the electorate in a state would be interested in punishing state elected officials who accept the new funds with the new strings attached, that must mean they'd be willing to re-elect state officials who declined those funds, and blew up the state's Medicaid program. In other words, if there isn't really a choice, then there isn't any accountability to pass around. More generally, the actual political dynamics of who voters blame for whom shouldn't be analyzed in some vague theoretical way, or, at the very least, laws shouldn't be struck down because of such vague theoretical analysis.


EDIT: Ooookay... it looks like the dissent, the Scalia/Thomas/Alito/Kennedy crowd (which really reads like Scalia, by the way) is now of the opinion that offering a state a really good deal if they'll just change a few of their policies, from scratch, is coercion. Here's the relevant section:

Suppose, for example, that Congress enacted legislation offering each State a grant equal to the State’s entire annual expenditures for primary and secondary education. Suppose also that this funding came with conditions governing such things as school curriculum, the hiring and tenure of teachers, the drawing of school districts, the length and hours of the school day, the school calendar, a dress code for students, and rules for student discipline. As a matter of law, a State could turn down that offer, but if it did so, its residents would not only be required to pay the federal taxes needed to support this expensive new program, but they would also be forced to pay an equivalent amount in state taxes. And if the State gave in to the federal law, the State and its subdivisions would surrender their traditional authority in the field of education. Asked at oral argument whether such a law would be allowed under the spending power, the Solicitor General responded that it would.

Well, yes. Of course it would be allowed under the spending power. I mean, it's really hard to see where this logic goes other than rejecting the entire concept of conditional grants to states to do stuff. Okay, I guess that you could do a tiny little bit of it, so long as the dollar figures involved weren't anything important. But basically Scalia (I really think it's Scalia) is saying that for the federal government to get state governments to adopt certain policies regarding the disposal of the dollars which the federal government proposes to give to those state governments, simply by offering them a really good deal, is per se unconstitutional. Um, what?