Early this morning, when I hastily made the blanket statement that the Medicaid expansion provisions "did not survive" -- I was mostly. . . wrong. [But I don't feel too badly about it -- almost no one has mentioned this rather-subtle angle on it all -- as near as I can tell.]
If one carefully parses Justice Ginsburg's opinion -- together with Chief Justice Roberts' -- reading them for areas of agreement, one learns that only the portions of Medicaid that represent "existing funding" to states that have elected to receive such funding may not be taken away, entirely.
Said another way, so long as a state has availed itself of Medicaid funding, and so long as HHS doesn't strip it all away (and only suggests it will stop "new" fundings to the states involved) -- such a Medicaid provision looks. to. pass. muster.
All Justice Roberts really said was that those parts of the ACA that would strip existing Medicaid funds from the states would fail.
Presumably, HHS may now write the new Medicaid rules (not yet extant, to my knowlege) to make plain that only "new" funds are being tethered to the ACA measures, given Justice Ginsburg's clever parsing.
On balance -- this is even a bigger win for Camp Obama than most pundits have as yet figured out. Here's a bit from Justice Ginsburg:
. . . .As these decisions show, Pennhurst’s rule demands that conditions on federal funds be unambiguously clear at the time a State receives and uses the money — not at the time,perhaps years earlier, when Congress passed the law establishing the program. See also Dole, 483 U. S., at 208 (finding Pennhurst satisfied based on the clarity of the Federal Aid Highway Act as amended in 1984, without looking back to 1956, the year of the Act’s adoption).
In any event, from the start, the Medicaid Act put States on notice that the program could be changed: “The right to alter, amend, or repeal any provision of [Medicaid],” the statute has read since 1965, “is hereby reserved to the Congress.” 42 U. S. C. §1304. The “effect of these few simple words” has long been settled. See National Railroad Passenger Corporation v. Atchison, T. & S. F. R. Co., 470 U. S. 451, 467–468, n. 22 (1985) (citing Sinking Fund Cases, 99 U. S. 700, 720 (1879)). By reserving theright to “alter, amend, [or] repeal” a spending program,Congress “has given special notice of its intention to retain . . . full and complete power to make such alterations andamendments . . . as come within the just scope of legislative power.” Id., at 720. . . .
THE CHIEF JUSTICE nevertheless would rewrite §1304to countenance only the “right to alter somewhat,” or “amend, but not too much.” Congress, however, did not so qualify §1304. Indeed, Congress retained discretion to “repeal” Medicaid, wiping it out entirely. Cf. Delta Air Lines, Inc. v. August, 450 U. S. 346, 368 (1981) (Rehnquist,J., dissenting) (invoking “the common-sense maxim that the greater includes the lesser”). As Bowen indicates, no State could reasonably have read §1304 as reserving to Congress authority to make adjustments only if modestly sized.
In fact, no State proceeded on that understanding. In compliance with Medicaid regulations, each State expresslyundertook to abide by future Medicaid changes. See 42 CFR §430.12(c)(1) (2011) (“The [state Medicaid] plan mustprovide that it will be amended whenever necessary to reflect . . . [c]hanges in Federal law, regulations, policy interpretations, or court decisions.”). Whenever a State notifies the Federal Government of a change in its own Medicaid program, the State certifies both that it knows the federally set terms of participation may change, and that it will abide by those changes as a condition of continued participation. See, e.g., Florida Agency for HealthCare Admin., State Plan Under Title XIX of the Social Security Act Medical Assistance Program §7.1, p. 86 (Oct.6, 1992).
THE CHIEF JUSTICE insists that the most recent expansion, in contrast to its predecessors, “accomplishes a shift in kind, not merely degree.” Ante, at 53. But why was Medicaid altered only in degree, not in kind, when Congress required States to cover millions of children and pregnant women? See supra, at 41–42. Congress did not “merely alte[r] and expan[d] the boundaries of ” the Aid to Families with Dependent Children program. But see ante, at 53–55. Rather, Congress required participating States to provide coverage tied to the federal poverty level (as itlater did in the ACA), rather than to the AFDC program. See Brief for National Health Law Program et al. as Amici Curiae 16–18. In short, given §1304, this Court’s construction of §1304’s language in Bowen, and the enlargement of Medicaid in the years since 1965, a State would be hard put to complain that it lacked fair notice when,in 2010, Congress altered Medicaid to embrace a largerportion of the Nation’s poor. . . .
At bottom, my colleagues’ position is that the States’ reliance on federal funds limits Congress’ authority to alter its spending programs. This gets things backwards: Congress, not the States, is tasked with spending federal money in service of the general welfare. And each successive Congress is empowered to appropriate funds as it sees fit. When the 110th Congress reached a conclusion about Medicaid funds that differed from its predecessors’ view, it abridged no State’s right to “existing,” or “pre-existing,”funds. . . .
THE CHIEF JUSTICE, however, holds that the Constitution precludes the Secretary from withholding “existing” Medicaid funds based on States’ refusal to comply with the expanded Medicaid program. Ante, at 55. For the foregoing reasons, I disagree that any such withholding would violate the Spending Clause. Accordingly, I would affirm the decision of the Court of Appeals for the Eleventh Circuit in this regard. But in view of THE CHIEF JUSTICE’s disposition, I agree with him that the Medicaid Act’s severability clause determines the appropriate remedy. That clause provides that “[i]f any provision of [the Medicaid Act], or the application thereof to any person or circumstance, is held invalid, the remainder of the chapter, and the application ofsuch provision to other persons or circumstances shall not be affected thereby.” 42 U. S. C. §1303. The Court does not strike down any provision of the ACA. It prohibits only the “application” of the Secretary’s authority to withhold Medicaid funds from States that decline to conform their Medicaid plans to the ACA’s requirements. Thus the ACA’s authorization of funds to finance the expansion remains intact, and the Secretary’s authority to withhold funds for reasons other than noncompliance with the expansion remains unaffected. . . .
Oh my. This is as close to a complete victory as Mr. Obama could have possibly imagined, given that the nine sitting Justices are -- as a lot -- the most conservative, in perhaps three-quarters of a century. Proceed to party!