The legal case against Obamacare's Medicaid expansion 

I've written quite a bit on the legal debate over President Obama's the health care law, specifically focusing on the arguments about why the individual mandate is unconstitutional. But 26 states led by Florida went before the 11th Circuit Court of Appeals yesterday, and made an additional argument -- that the law's expansion of Medicaid was also unconstitutional.

It's easy to see why states would be against the Medicaid expansion. As things stand now, Medicaid is crushing state budgets, and Obamacare would add roughly 18 million people to the program's rolls. While the federal government would cover most of that expansion at first, over time, it would shift an increasing amount of the burden to cash-strapped states.

From a constitutional perspective, protesting the Medicaid expansion is the weaker legal argument than challenging the mandate, and the Virginia-based suit isn't even making this claim.

The reason is that courts have generally adopted the theory that as long as states are accepting money from the federal government for a given program, they have to follow its rules.

But Paul Clement, the former solicitor general who represented the states, argued that the Medicaid money represents such a large amount of their budget, that they can't realistically refuse to accept it. Furthermore, he said that the problem with the law is that it doesn't merely say that if states don't expand Medicaid, they don't get any new money. It says, if states don't expand Medicaid, they lose all their Medicaid funding, even that which existed before the expansion passed. If Congress had tied the choice to accept new beneficiaries to the new money instead of the preexisting funding, Clement argued, they wouldn't be challenging the law. 

The Medicaid argument is likely a hard sell to the courts, but worth keeping an eye on nonetheless.

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Philip Klein

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