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Medicaid appears likely to survive its latest encounter with the Supreme Court

The anti-Medicaid arguments in Health and Hospital Corporation v. Talevski appeared to be too much even for this Court.

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A mother helps weigh her 3-day-old daughter at a low-cost clinic in 2009, in Aurora, Colorado.
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Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court.

Most of the Supreme Court justices appeared unlikely to embrace a truly outlandish legal argument presented to them on Tuesday, which could have gutted the Medicaid program that provides health coverage to over 76 million low-income Americans.

In that case, Health and Hospital Corporation of Marion County v. Talevski, the defendants asked the justices to stop allowing Medicaid patients to sue to enforce the program’s standards — a move that would have rendered all of Medicaid law almost entirely unenforceable. Fortunately for the tens of millions of Americans who count on Medicaid, most of the justices appeared unlikely to bite on these arguments. Although, based on Tuesday’s arguments, as many as three justices may still sign on to this whole-scale attack on Medicaid.

While several of the justices appeared conflicted over whether nursing home residents may sue to enforce their rights under Medicaid law, or whether they must pursue their grievances through an administrative process separate from the federal court system, only Justices Clarence Thomas and Samuel Alito expressed openness to the Talevski defendants’ most radical claims (although Justice Neil Gorsuch, who frequently votes with Thomas and Alito, remained silent).

The plaintiffs in Talevski allege that a nursing home overseen by local government officials in Indianapolis, Indiana, violated several provisions of federal law protecting nursing home residents — including one that prohibits those facilities from using psychotropic drugs “for purposes of discipline or convenience and not required to treat the resident’s medical symptoms.” It is still possible that they will lose their case on narrow grounds — the Court could hold that nursing home residents may only use the administrative process to enforce Medicaid law.

But the catastrophic result for low-income Americans that the Talevski defendants sought in their brief appears unlikely to happen.

The Talevski defendants want to make federal Medicaid law almost entirely unenforceable

Medicaid is a “conditional grant” program, meaning that the federal government offers a significant amount of money to each state, but the states can only have this money if they agree to comply with a long list of conditions. States that accept Medicaid funds, for example, must provide health coverage to groups of people that qualify based on their income, age, disability, or family circumstances. States also must comply with more granular rules governing how Medicaid-funded facilities must operate — such as the nursing home rules at issue in Talevski.

Under current law, at least some of the requirements laid out in Medicaid law may be enforced through lawsuits filed in federal court. If a state refuses to provide Medicaid coverage to someone who is legally entitled to it, for example, that person would file a lawsuit seeking the benefits guaranteed to them by law.

Congress explicitly authorized these sorts of lawsuits in a Reconstruction-era law known as “Section 1983,” which provides that state officials — and, in certain circumstances, private individuals implementing state programs — may be sued in federal court if they deprive someone of “any rights, privileges, or immunities secured by the Constitution and laws.”

The argument that Section 1983 permits lawsuits seeking to enforce Medicaid law, moreover, is extraordinarily straightforward. Section 1983 permits lawsuits against certain individuals who violate rights “secured by the Constitution and laws.” Medicaid laws are laws, even if they only apply to institutions that receive federal Medicaid funding.

Nevertheless, the Talevski defendants made the historically dubious claim that Section 1983 suits may not be used to enforce Medicaid law, because similar suits were not permitted under 19th-century contract law. (If that argument sounds weak, that’s because it is extraordinarily weak. I provide more detail on the defendants’ arguments and why they are wrong here.)

But only Thomas and, to a lesser extent, Alito expressed much sympathy for this dubious claim.

The three liberal justices, Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, each took turns beating up on the lawyers attacking Medicaid — in one particularly brutal exchange, Jackson accused one of these lawyers of trying to “rewrite” the unambiguous language of Section 1983.

Significantly, these liberal justices were joined at one point by Justice Amy Coney Barrett — a conservative Trump appointee — who told one of the anti-Medicaid lawyers that she does not “see the connecting of the dots” in his historical argument.

Chief Justice John Roberts and Justice Brett Kavanaugh, meanwhile, barely even mentioned the question of whether Medicaid law is enforceable. They spent the bulk of their questions probing how Medicaid law should be enforced, and whether the nursing home rules at issue in Talevski should be enforced through Section 1983 suits or through an alternative method.

Roberts and Kavanaugh, in other words, appeared to assume that the defendants are wrong that Medicaid law is unenforceable.

In fairness, if the Talevski defendants’ most radical arguments did prevail, the federal government could still potentially impose sanctions on states that violate Medicaid law. Even in the absence of Section 1983 suits, federal health officials have the power to cut off some or all Medicaid funds to states that violate the Medicaid statute.

As a practical matter, however, this remedy is a paper tiger. The federal government has few resources to investigate Medicaid violations. And, even when it uncovers one, federal officials are exceedingly reluctant to cut off a state’s Medicaid funding for an obvious reason: Cutting off Medicaid funding means that the state has less money to provide health care to low-income people. So, if the federal government takes this action, it will essentially punish low-income patients for their state government’s misconduct.

But it looks like at least six members of the Supreme Court are likely to leave the Medicaid program largely intact. It remains to be seen what the Supreme Court will say in its Talevski opinion, but a calamitous outcome for low-income patients now appears unlikely.

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