Posted on March 28, 2012 at 2:28 pm by Tom Goldstein
Paul Clement is concluding his rebuttal now. In the second half of the argument there were more voices, including Justice Alito, for the idea that the Medicaid expansion is coercive, but it did not seem at all a likely outcome. The questions were too abstract about general principles. One very plausible middle ground outcome would be to say that there are some limits on the federal government’s ability to revoke all Medicaid funds in response to a state’s decision just to refuse the expansion. What those limits are would be left for another case. But I don’t see the Court going further than that. The Chief repeatedly suggested that maybe the states gave up this aspect of the sovereignty by accepting federal funds. The SG closed with an argument that the health care statute as a whole including the mandate was essential to the public receiving the “blessings of liberty” because health care is so important. All the usual caveats apply about how you cant be sure from an argument.