Earlier today, the U.S. Supreme Court heard oral arguments on the minimum coverage provision – otherwise known as the “individual mandate” – included in the Patient Protection and Affordable Care Act (ACA) that Congress approved two years ago. Most legal commentators agree that today’s argument is the most important since Bush v. Gore, and indeed, some have even described it as the case of the century. The minimum coverage provision lies at the core of the ACA and the Court’s decision will have far reaching implications legally and of course politically in this November’s presidential election. As Vice President Joe Biden memorably said to President Obama when he signed ACA into law, this is a big [expletive deleted] deal.
But as you may have heard, the Court has scheduled three days of argument on the Affordable Care Act, and we’re only on day two – so what’s happening tomorrow? The answer, as it turns out, is highly relevant to federal education policy.
Let’s begin with the requisite legal primer. In addition to the individual mandate, the ACA also amended the Medicaid program, which provides health-care services to the poor. Medicaid is what’s known as a “cooperative federal-state program”: the federal government establishes general requirements for providing health care, and participating states in return agree to abide by the requirements to receive federal funds. Under the ACA, a state that participates in Medicaid – and all of them do – will be required to extend coverage to all its non-elderly citizens with incomes below 133% of the federal poverty line (estimated at 11.2 million people), or else lose all federal funding.
The question the Court will take up tomorrow is whether Congress exceeded its constitutional authority in conditioning federal funding to force changes to a state program. The argument of the pro-ACA forces is simple and straightforward: Medicaid is purely voluntary, so states (as they always have) may choose to abide the federal requirements and receive federal funds, or withdraw from the program. In contrast, the argument of those opposing the ACA’s Medicaid expansion might be summarized as “let’s get real.” Sure, in theory states can refuse federal Medicaid dollars, but in reality this would result in billion-dollar hits to their state budgets. “If penalties of that magnitude do not cross the line from ‘inducement’ to ‘coercion’ and trigger the anti-coercion prong of this Court’s analysis in South Dakota v. Dole,” argued one group of conservative legal scholars, “nothing ever will.” In other words, let’s get real.
Which now brings us back to how tomorrow’s argument relates to, and may profoundly affect, federal education policy. The Elementary and Secondary Education Act (aka No Child Left Behind) is a cooperative federal-state program that, legally speaking, is indistinguishable from Medicaid. And did you note that Supreme Court case I snuck into the last paragraph, South Dakota v. Dole? As I have argued elsewhere, Dole and the cases that followed in its wake directly touch upon the scope of the Obama Administration’s authority to offer conditional “waivers” from NCLB requirements in return for states changing their state education policies. Should the Court affirm the broad authority of the federal government to attach conditions to federal funds (the likely outcome, in my opinion), Secretary Duncan should breathe a little easier regarding the legality of waivers. But should the Court find that Congress coerced states into making policy changes by threatening to withdraw federal funding, you can bet the Department of Education’s legal team will be taking careful note.