02-19-2017  1:29 pm      •     

President Obama signing the landmark bill into law
in March 2010

By Sergio Eduardo Muñoz, New America Media

WASHINGTON, D.C. — The primary issue before the U.S. Supreme Court this week, and one attracting most media discussion, is the debate over whether the federal government can compel people to buy a product, in this case health insurance.

But just as important is the secondary challenge to the Affordable Care Act's (ACA) expansion of Medicaid to cover million of currently uninsured, low-income people. If this is upended, it could flood the courts with legal challenges to a wide range of other laws on everything from environmental protection to civil rights. That's why we at the National Council of La Raza (NCLR) are weighing in on the issue.

A major aim of health care reform is to cover most uninsured people in the United States, about 50 million individuals. To do so, ACA would enroll almost a third of them in Medicaid, the federal-state program for Americans with incomes at or below 133 percent of the federal poverty line.

ACA Could Cover 4 Million More Latinos

Although oral arguments on this issue are happening today, last month, the Obama administration presented the Supreme Court its brief defending the Medicaid expansion. It argued the government has long-standing authority to expand this federal program, as it has many times.

In support of ACA's broadening of Medicaid, the National Health Law Program filed an amicus brief affirming this position on behalf of NCLR, AARP, the National Council on Aging and other health care reform advocates.

People are missing the boat if they're ignoring this issue. Like other parts of the high court's health care reform case, a Medicaid decision against the administration could not only render the ACA unconstitutional, it could roll back other existing health coverage programs and undermine a slew of civil rights laws.

That's because ACA's opponents contend in their lawsuit that the law leaves states "no real choice" but to participate in Medicaid, including having to adhere to its minimum national standards for providing good health care. But many laws, such as civil rights statutes, already require states to meet federal requirements.

Medicaid is especially important to ethnic minorities. Right now, for example, the program provides crucial health insurance to more than 13 million Latinos, including half of all Latino children in the United States. If the percentage of Hispanic Medicaid participants remains constant, according to Congressional Budget Office estimates, at least 4 million more will enroll under the ACA expansion by 2020.

This public program has always drawn low-income Latino families and those of other ethnic groups. And for states, Medicaid—which is voluntary for states -- is a bargain. If a state chooses to set up public health insurance for its poorest residents under Medicaid, the federal government pitches in at least half of the cost, and up to 83 percent for the poorest states.

States do even better with ACA. If states choose to participate in Medicaid, the expanded program would include everyone under 133 percent of the federal poverty level.

In addition, ACA would pay states 100 percent of the cost of new Medicaid enrollees through 2016, and then cover 95 percent in 2017, and 90 percent starting in 2020.

Wiggling Out of Consumer Protections

Rules requiring states to meet basic federal standards of access to and quality of care under Medicaid would still apply, of course. That's always been true.

But 26 states are suing the federal government to reverse ACA, arguing that the program's expansion is a constitutional tipping point. They assert in part that federal Medicaid funding has become so crucial to states' budgets, expanding the program with so much funding to cover the new patients is too irresistible an option for states to turn down. Their lawsuit says ACA impermissibly "coerces" states to accept its terms because the funding is so generous.

Really, that's part of their argument.

Put simply, states can't just take the money and slash eligibility or benefits. The efforts of some states to wiggle out of consumer protections established in the Medicaid law are a not-so-subtle subtext of the "coercion" challenge. Were the court to declare the Medicaid expansion unconstitutional, it could damage the rest of the program as well. And that's just the tip of the iceberg.

Fortunately, 13 other states filed a brief in the Supreme Court supporting ACA as an example of "cooperative federalism." They want the Medicaid expansion and the support it will bring.

But an unfavorable ruling on ACA's expansion of Medicaid could open the door to similar attempts to pick apart civil rights laws that have ensured protections for vulnerable groups.

In prohibiting discrimination, the federal government has long asserted its authority to set terms on the use of its money. Some examples are racial- and national-origin discrimination under Title VI of the Civil Rights Act of 1964, disability discrimination in the Rehabilitation Act of 1973, and the Age Discrimination Act of 1975.

Discrimination and Women's Final Four

And, arguably, would sportscasters even be reporting this week on the Final Four in women's college basketball were it not for Title IX of the Education Amendments of 1972?

State universities often complain about strings attached to the federal funding they receive -- particularly those that bar sex discrimination under Title IX.

A reversal of ACA's Medicaid expansion, if the court agrees it is coercive, could subject Title IX --perhaps the most direct federal-state partnership comparable to Medicaid—to court challenges. States would likely claim that in periods of economic austerity they would have to cut crucial education funding in order to field both men's and women's teams. Given their past challenges to Title IX, it isn't a stretch to see how they'll glom onto a coercion decision on Medicaid.

Historically, without federal powers to nudge state behavior, the arc of the moral universe gets even farther away from justice. At the end of the day, the unraveling of the post-New Deal or civil rights eras won't be inevitable with a decision that strikes down the ACA. But the Supreme Court would certainly have been offered up means to that end.

This Supreme Court case is bigger than Medicaid, the individual mandate, or even health care reform. If the administration loses this case, it loses a huge part of its ability to enforce states' equal protection of their residents. For vulnerable minorities, that could lead to a very different America than the one we know now.

Sergio Eduardo Muñoz is a senior policy analyst at the National Council of La Raza's Health Policy Project, Office of Research, Advocacy and Legislation.

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