Is there a states’ rights issue in the Affordable Care Act?
Chicago labor lawyer Thomas Geoghegan has a piece in Politico debunking the legal claims made by state attorneys general against the Affordable Care Act. Geoghegan’s most persuasive argument is that the voluntary nature of Medicare puts conservative lawyers in a poor predicament. Geoghegan pounces:
Now, the state attorneys general anticipate this annoying quibble. Their complaint has a paragraph that, in effect, says: “OK, we know it’s voluntary. But we’re invested in the old Medicaid rules, and we can’t just leave the program now.”
In other words, if a state voluntarily participates in a federal program, it has a 10th Amendment right to have the federal government implement the program exactly the way the state wants. Implicit here is the claim that the federal government cannot change any welfare program that goes through a state — unless the state agrees.
The idea of “states’ rights” is thought to be at the core of the conservative argument against ACA. But it seems like states have already quite voluntarily delegated much of their health care responsibility quite happily to the federal government. Geoghegan reminds us that the key reason Texas or any other state would not and cannot actually secede is that they would be cut off from the flood of federal entitlement money that’s critical to keeping their operations afloat. The federalism argument plays well on TV, but ultimately the discussion is just about the level at which a particular federal program should be funded.