NFIB Sebelius Dissent

 

41

funding item is aid to support elementary and secondary
education, which amounts to 12.8% of total federal outlays
to the States, see id., at 7, 16, and equals only 6.6% of
all state expenditures combined.  See ibid.  In Arizona,
for example, although federal Medicaid expenditures are
equal to 33% of all state expenditures, federal education
funds amount to only 9.8% of all state expenditures. See
ibid. And even in States with less than average federal
Medicaid funding, that funding is at least twice the size of
federal education funding as a percentage of state expend-
itures.   Id., at 7, 16, 47.

  A State forced out of the Medicaid program would face
burdens in addition to the loss of federal Medicaid fund-
ing. For example, a nonparticipating State might be found
to be ineligible for other major federal funding sources,
such as Temporary Assistance for Needy Families (TANF),
which is premised on the expectation that States will
participate in Medicaid.  See 42 U. S. C. §602(a)(3) (2006
ed.) (requiring that certain beneficiaries of TANF funds be
““eligible for medical assistance under the State[‘’s Medi-
caid] plan””). And withdrawal or expulsion from the Medi-
caid program would not relieve a State’s hospitals of their
obligation under federal law to provide care for patients
who are unable to pay for medical services. The Emer-
gency Medical Treatment and Active Labor Act, §1395dd,
requires hospitals that receive any federal funding to
provide stabilization care for indigent patients but does
not offer federal funding to assist facilities in carrying out
its mandate. Many of these patients are now covered by
Medicaid. If providers could not look to the Medicaid
program to pay for this care, they would find it exceed-
ingly difficult to comply with federal law unless they were
given substantial state support. See,  e.g., Brief for Econ-
omists as Amici Curiae in No 11–400, p. 11.

  For these reasons, the offer that the ACA makes to the
States—go along with a dramatic expansion of Medicaid or

42

potentially lose all federal Medicaid funding—is quite
unlike anything that we have seen in a prior spending-
power case. In South Dakota v. Dole, the total amount
that the States would have lost if every single State
had refused to comply with the 21-year-old drinking
age was approximately $614.7 million-—or about 0.19%
of all state expenditures combined. See Nat. Assn.
of State Budget Officers, 1989 (Fiscal Years 1987-–
1989 Data) State Expenditure Report 10, 84 (1989),
http://www.nasbo.org/publications-data/state-expenditure-
report/archives.  South Dakota stood to lose, at most,
funding that amounted to less than 1% of its annual state
expenditures. See ibid. Under the ACA, by contrast, the
Federal Government has threatened to withhold 42.3% of
all federal outlays to the states, or approximately $233
billion. See NASBO Report 7, 10, 47. South Dakota
stands to lose federal funding equaling 28.9% of its annual
state expenditures. See id., at 7, 47.  Withholding $614.7
million, equaling only 0.19% of all state expenditures
combined, is aptly characterized as “”relatively mild en-
couragement,”” but threatening to withhold $233 billion,
equaling 21.86% of all state expenditures combined, is a
different matter.

2

  What the statistics suggest is confirmed by the goal
and structure of the ACA.  In crafting the ACA, Congress
clearly expressed its informed view that no State could
possibly refuse the offer that the ACA extends.

  The stated goal of the ACA is near-universal health care
coverage. To achieve this goal, the ACA mandates that
every person obtain a minimum level of coverage.  It at-
tempts to reach this goal in several different ways.  The
guaranteed issue and community-rating provisions are
designed to make qualifying insurance available and
affordable for persons with medical conditions that may 

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