An editorial in the Wall Street Journal nails a specious legal argument by at least two GOP governors trying to convince their Republican legislatures to approve the ObamaCare Medicaid expansion now, with the intention of opting out when the state’s bill comes due in three years.
The argument, a product of a private law firm in Ohio, makes some nice lawyer’s points, but ultimately fails to take into account how government programs – and the politics that drive them – actually work:
But there’s no evidence in the original law or the Supreme Court opinion that states can join or leave at their own whim. The logic of Justice Roberts’s opinion [upholding ObamaCare] suggests that once states adopt new Medicaid, the program immediately becomes the old program for the purposes of the law and then states can’t leave.
The Becker memo also cites “guidance” from the federal Health and Human Services Department that states “may decide later to drop the coverage.” But these informal documents on the HHS website lack the force of law or even of regulation; they aren’t part of the Federal Register. In any case, HHS doesn’t have such authority. Congress didn’t grant the Administration any more statutory leeway than it did the states.
We wouldn’t be surprised if HHS is promising flexibility now only to revoke it later as a deliberate bait and switch. That wouldn’t be any more deceptive than Mr. Kasich’s legal claims. Republicans tempted to sign up for ObamaCare’s Medicaid expansion had better think twice because once they do, the likelihood is they’re ceding control forever.
The decision facing Republican legislatures is straightforward: Either continue with Medicaid as it is and have (some) discretion over your state budget, or accept ObamaCare’s expansion and get ready to lose control.
It’s time for the GOP flip-floppers to be honest about the implications of this decision and debate the choice, and the consequences, on the merits.