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The states have been accepting federal Medicaid money with strings attached for years, Roberts said, so “they shouldn’t be surprised that the federal government has decided to pull them.”
But Roberts also sounded worried about the precedent the law might set, asking why the justices shouldn’t be concerned that HHS would use its power to force states to implement more Medicaid expansions.
“Why shouldn't we be concerned about the extent” that HHS would use its authority to strong-arm the states, Roberts asked Solicitor General Donald Verrilli...
Justice Elena Kagan pounded Paul Clement, the attorney for the states, with questions about whether the Medicaid expansion is really an unreasonable demand for the states — especially when the federal government will pick up all of the costs in the early years and most of the costs in the later years.
“Why is a big gift from the federal government a matter of coercion?” Kagan asked. “It’s just a boatload of federal money [to help] poor people.”
Justice Antonin Scalia, however, signaled doubts when he asked Verrilli what would prevent the federal government from making similar demands to expand states’ education programs.
When Verrilli responded that political constraints would prevent that from happening, Scalia responded: “I would have thought there was a serious political constraint on the individual mandate, too.”