The OTHER major issue in today’s ACA appellate argument: Medicaid changes

In the ACA case being argued today in the 11th Circuit Court of Appeals, the plaintiffs are 26 states, one business organization, and at least two individuals. This is the case in which the trial-level judge, Roger Vinson, held the entire ACA unconstitutional on the basis that, he ruled, the mandate provision is unconstitutional because it mandates “activity” and penalizes for “inactivity.”

In my posts last week, I discussed ad nauseam the issue of legal “standing” to challenge the constitutionality of the mandate provision, and said that in the two cases argued in the 4th Circuit last month, and the one argued in the 6th Circuit on June 1, there were big questions about whether the plaintiffs in those cases had standing regarding the mandate issue. In one of the two 4th Circuit, a state, Virginia, was the plaintiff, but in that case, Virginia challenged only the mandate provision. I said that since Virginia is not subject to the mandate to buy health insurance for itself, it’s likely that the 4th Circuit will dismiss that lawsuit, holding that Virginia lacks standing to make the claim. To have “standing,” you have to have a “particularized” (i.e., a concrete, reasonably direct) injury from the act (here, the legislation) at issue.

In the case being argued today, State of Florida v. U.S. Dept. of HHS, the plaintiffs are 26 states, a business group, and at least two individuals. Unlike Virginia in the 4th Circuit case, these 26 states are challenging the ACA’s constitutionality on an issue entirely unrelated to the mandate provision: the provisions in the ACA that significantly alter Medicaid. The states are claiming that those changes amount to an unconstitutional “commandeering” of state policy, via the Medicaid Act as amended by the ACA.

The argument strikes me as absurd. Santa Clara law prof. Brad Joohdeph, who has a blog dedicated entirely to the ACA litigation, has an article-length post today that details and then deconstructs the state’s arguments. His conclusion: that some of the arguments aren’t complete nonsense but that they would require such dramatic and far-reaching alterations to constitutional law that they’re unlikely to succeed in any court, including the Supreme one.

My conclusion: the arguments are nonsense.