NFIB Sebelius Dissent

17 Oct



require expensive care. Other ACA provisions seek to
make such policies more affordable for people of modest
means. Finally, for low-income individuals who are
simply not able to obtain insurance, Congress expanded
Medicaid, transforming it from a program covering only
members of a limited list of vulnerable groups into a pro-
gram that provides at least the requisite minimum level
of coverage for the poor.  See 42 U. S. C. §§1396a(a)
(10)(A)(i)(VIII) (2006 ed., Supp. IV), 1396u–-7(a), (b)(5),
18022(a). This design was intended to provide at least
a specified minimum level of coverage for all Americans,
but the achievement of that goal obviously depends on
participation by every single State.  If any State—not
to mention all of the 26 States that brought this suit—
chose to decline the federal offer, there would be a gaping
hole in the ACA’s coverage.

 It is true that some persons who are eligible for Medi-
caid coverage under the ACA may be able to secure private
insurance, either through their employers or by obtain-
ing subsidized insurance through an exchange. See 26
U. S. C. §36B(a) (2006 ed., Supp. IV); Brief for Respond-
ents in No. 11–-400, at 12. But the new federal subsidies
are not available to those whose income is below the fed-
eral poverty level, and the ACA provides no means, other
than Medicaid, for these individuals to obtain coverage
and comply with the Mandate.  The Government counters
that these people will not have to pay the penalty, see, e.g.,
Tr. of Oral Arg. 68 (Mar. 28, 2012); Brief for Respondents
in No. 11–-400, at 49–-50, but that argument misses the
point: Without Medicaid, these individuals will not have
coverage and the ACA’’s goal of near-universal coverage
will be severely frustrated.

  If Congress had thought that States might actually
refuse to go along with the expansion of Medicaid, Con-
gress would surely have devised a backup scheme so that
the most vulnerable groups in our society, those previously


eligible for Medicaid, would not be left out in the cold.  But
nowhere in the over 900-page Act is such a scheme to be
found. By contrast, because Congress thought that some
States might decline federal funding for the operation of
a “”health benefit exchange,”” Congress provided a backup
scheme; if a State declines to participate in the operation
of an exchange, the Federal Government will step in
and operate an exchange in that State.  See 42 U. S. C.
§18041(c)(1). Likewise, knowing that States would not
necessarily provide affordable health insurance for aliens
lawfully present in the United States—-because Medicaid
does not require States to provide such coverage—-Con-
gress extended the availability of the new federal insur-
ance subsidies to all aliens. See 26 U. S. C. §36B(c)
(1)(B)(ii) (excepting from the income limit individuals
who are “”not eligible for the medicaid program . . . by
reason of [their] alien status””). Congress did not make
these subsidies available for citizens with incomes below
the poverty level because Congress obviously assumed
that they would be covered by Medicaid.  If Congress had
contemplated that some of these citizens would be left
without Medicaid coverage as a result of a State’s with-
drawal or expulsion from the program, Congress surely
would have made them eligible for the tax subsidies pro-
vided for low-income aliens.

  These features of the ACA convey an unmistakable
message: Congress never dreamed that any State would
refuse to go along with the expansion of Medicaid. Con-
gress well understood that refusal was not a practical

  The Federal Government does not dispute the inference
that Congress anticipated 100% state participation, but it
argues that this assumption was based on the fact that
ACA’’s offer was an ““exceedingly generous”” gift.  Brief for
Respondents in No. 11–-400, at 50.  As the Federal Gov-
ernment sees things, Congress is like the generous bene-

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