Just the Latest Challenge to Obamacare

Steven D. Schwinn, John Marshall Law School

Florida Governor Rick Scott filed suit yesterday against the federal government arguing that its move to take away the state's Low Income Pool money compels the state to expand Medicaid under the Affordable Care Act--all in violation of the anti-commandeering principle and the "gun to the head" principle in NFIB v. Sebelius.

We posted on Florida's LIP and the constitutional issues here. The Center for Budget and Policy Priorities just put out a very helpful backgrounder here.

In short, LIP is a federal program that pays health-care providers for uncompensated care for the poor. Medicaid, and the ACA's Medicaid expansion, pays directly for health care for that same population.

The lawsuit argues that the federal government threatened to take away the state's LIP money unless the state expands Medicaid under the ACA--and that this amounts to unconstitutional coercion in violation of federalism principles and the Tenth Amendment under NFIB.

But the case is a sham. The federal government doesn't appear to be strong-arming Florida into expanding Medicaid as much as it appears to prefer to spend money directly on health insurance for the poor instead of paying for uncompensated care for them. That's a policy choice that the federal government can make. States have no entitlement to LIP money, or to any particular federal approach to providing health care for the poor. And when the feds take away LIP funds, Florida's choice is clear: figure out a way to cover care for the poor, or don't.

Governor Scott claims that this isn't a real choice, because the state can't afford to let the poor go without health insurance. If that's right, he can implement his own program, or he can expand Medicaid. This hardly seems like compulsion.

The case is obviously politically, and not constitutionally, motivated, and probably has little chance of success on the merits. "Probably," because so many thought the same thing about NFIB, before the Court got a hold of it.

There's another commonality with NFIB: Governor Scott hired Paul Clement to represent him.