We haven’t heard much about what Politico has dubbed the “sleeper issue” of the Supreme Court case because it is the least likely to be found unconstitutional.   This week, Attorney Paul Clement tried to stoke a little life into the sleeper issue by tying it to the more controversial mandate provision.  In the brief he filed on behalf of the states challenging the constitutionality of the Affordable Care Act, he argued that the Medicaid expansion is possibly more coercive than the mandate (otherwise known as the individual responsibility or minimum-insurance coverage provision).

As with most anti-Affordable Care Act arguments, the point that expanding Medicaid would be “coercive” and impose a mandate on the states is based on “more rhetoric than fact”.    I would like to take credit for that phrase but I found it in the 11th Circuit Court ruling on the topic. 

“While some individuals are exempt from the penalties designed to enforce the mandate, no state is exempt from the massive penalty — the loss of the entirety of funding under the single largest grant-in-aid programs for the states — and so Congress did not even contemplate the possibility of a state opting out of Medicaid,” wrote Clement in a brief filed with the court Tuesday.

Hopefully even that super-charged rhetoric can’t wake the Rip Van Winkle of sleeper issues. 

For another viewpoint, read the New England Journal of Medicine piece “All Heat, No Light – States’ Medicaid Claims Before the Supreme Court” by Sara Rosenbaum and Tim Jost.  They write:

“From a legal perspective, nothing about this latest Medicaid expansion is different from past expansions, other than the fact that it passed as part of a broader health care reform effort. This fact does not change Medicaid’s fundamental status as a voluntary program. Were a state to decide that it would rather end its Medicaid program than cover poor adults, it might have to devise a health care alternative for its poorest residents. But that has always been the question states face when Congress expands Medicaid. States may be confronted with a “hard choice,” in the words of the 11th Circuit, as to whether to continue participating in Medicaid. But that is not a constitutional matter.”

The Department of Justice brief on the Medicaid expansion is due on February 10.  Oral arguments on the topic are scheduled for March 28.  For more information on the Supreme Court timeline and a synopsis of the friend of the court briefs filed in support of the Affordable Care Act so far, visit the Center for Progress.

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