On July 30, Alaska Dispatch News published a commentary by Sen. John Coghill discussing the weaknesses of Gov. Bill Walker's unilateral Medicaid expansion. On Aug. 4, Mark Regan, the legal director of the Disability Law Center of Alaska, defended the Walker administration.
Contrary to Mr. Regan's assertion, the U.S. Supreme Court in National Federation of Independent Business v. Sebelius, 132 S.Ct. 2566 (2012) made the Medicaid expansion group of able-bodied childless adults an additional, optional group.
To remind everyone, here's the question: Is the Medicaid expansion group of able-bodied childless adults required or is it an additional, optional group? If required, the governor argues that he may be able to expand the state Medicaid entitlement program unilaterally. If an additional, optional group, he must have legislative approval pursuant to state statute. See AS 47.07.020(d).
Mr. Regan outlines his own argument, and largely focuses on Section 1902(a)(10)(A) of the Social Security Act. The relevant discussion actually centers around 42 U.S.C. 1396a(a)(10)(A)(i)(VIII) (The Affordable Care Act provision that amended the federal Medicaid statues to "require" all able-bodied childless adults below 133 percent (effectively 138 percent) of the federal poverty line).
Mr. Regan is correct, however, at the end of his piece when the focus shifts to the U.S. Supreme Court's interpretation of the Medicaid expansion group found in National Federation of Independent Business v. Sebelius, 132 S.Ct. 2566 (2012). As most are aware, and as stated in NFIB, the Supreme Court is responsible for enforcing the limits on federal power by striking down acts of Congress that transgress those limits. See NFIB, 132 S.Ct. at 2579-80.
In other words, the Supreme Court is the "trump card." Although the Affordable Care Act or the Social Security Act may say one thing, the Supreme Court has the final say.
In NFIB, the Supreme Court is clear: "As for Medicaid expansion … Congress has no authority to order the States to regulate according to its instructions. Congress may offer the States grants and require the States to comply with accompanying conditions, but the States must have a genuine choice whether to accept the offer ... " (see NFIB at 2608).
The point is emphasized here: "As a practical matter ... States may now choose to reject the expansion; that is the whole point." (see NFIB, 132 S.Ct. at 2608).
Mr. Regan focuses on the express language of the Social Security Act (known as Section 1902(a)(10)(A)(i)(VIII)). He points out that the Supreme Court did not change the language in subsection (i) ("the mandatory category") and subsection (ii)("the optional category"). Noteworthy: In Section 1902(a)(10)(A)(ii)(XX), an optional category is discussed. Similar elements are found in the Medicaid expansion group.
Regardless, suggesting that the court can move "section 1902(a)(10)(A)(i)(VIII) from subsection (i) to subsection (ii)," as stated by Mr. Regan, is a "red herring." The U.S. Supreme Court cannot rewrite the language of the act. See U.S. v. Thirty-Seven (37) Photographs, 402 U.S. 363, 368-69, 91 S.Ct. 1400, 1404-05 (1971). Congress would have to rewrite the act, not the court.
The key then, for our purposes, is the U.S. Supreme Court's interpretation of the "required" Medicaid expansion population.
Despite the alleged "required" nature of the expansion group, the court overtly expressed that the expansion group was additional and optional.
Mr. Regan wanted us to look at what the Supreme Court "actually said, and didn't say."
Very well. Let's look a little deeper.
Here's what NFIB said: Congress can exercise its spending power (NFIB, 132 S.Ct. at 2579). However, Congress can merely offer funds to the states (based on offers of compliance with specified conditions) and offer inducements to states to adopt policies that the federal government could not impose (NFIB, 132 S.Ct. at 2579. See USCA Const. Art. 1, Section 8, cl 1).
Notice I said, "offer," and "policies that the federal government could not impose?"
Contrary to assertions by unilateral Medicaid expansion proponents, the additional expansion group of able-bodied childless adults was not required to be adopted by the states. The federal government can "make offers" to encourage states (for additional expansion), but that's it. There's no enforcement. In other words: Making the additional expansion group a "required group," which Congress attempted to do, was, according to the U.S. Supreme Court, a policy the federal government could not impose.
That doesn't meet the definition of "required," despite the language of 42 U.S.C. 1396a(a)(10)(A)(i)(VIII) or Section 1902(a)(10)(A)(i)(VIII) of the Social Security Act.
As others have stated, during the 2015 session Gov. Walker's staff did not believe the additional group of able-bodied childless adults was "required." House Bill 148 and Senate Bill 78 clearly show they believed it to be an additional, optional group.
Gov. Walker, at best, has been inconsistent on Medicaid expansion. Because of the inconsistencies (and the heavy consequences it will have on the direction of Alaska) the Legislature is right to question the legal issues surrounding unilateral expansion.
Chad Hutchison is an attorney from Fairbanks. He works for the Alaska Senate Majority under the direction of Sen. Coghill.
The views expressed here are the writer's own and are not necessarily endorsed by Alaska Dispatch News, which welcomes a broad range of viewpoints. To submit a piece for consideration, email commentary(at)alaskadispatch.com.