NFIB Sebelius Dissent

 

45

factor who offers $1 million with few strings attached to
50 randomly selected individuals. Just as this benefactor
might assume that all of these 50 individuals would snap
up his offer, so Congress assumed that every State would
gratefully accept the federal funds (and conditions) to go
with the expansion of Medicaid.

 This characterization of the ACA’’s offer raises obvious
questions. If that offer is “”exceedingly generous,”” as the
Federal Government maintains, why have more than half
the States brought this lawsuit, contending that the offer
is coercive? And why did Congress find it necessary to
threaten that any State refusing to accept this “”exceed-
ingly generous”” gift would risk losing all Medicaid funds?
Congress could have made just the new funding provided
under the ACA contingent on acceptance of the terms of
the Medicaid Expansion. Congress took such an approach
in some earlier amendments to Medicaid, separating new
coverage requirements and funding from the rest of the
program so that only new funding was conditioned on new
eligibility extensions. See, e.g., Social Security Amend-
ments of 1972, 86 Stat. 1465.

 Congress’’ decision to do otherwise here reflects its un-
derstanding that the ACA offer is not an “”exceedingly
generous”” gift that no State in its right mind would de-
cline. Instead, acceptance of the offer will impose very
substantial costs on participating States.  It is true that
the Federal Government will bear most of the initial costs
associated with the Medicaid Expansion, first paying
100% of the costs of covering newly eligible individuals
between 2014 and 2016. 42 U. S. C. §1396d(y).  But that
is just part of the picture. Participating States will be
forced to shoulder substantial costs as well, because after
2019 the Federal Government will cover only 90% of the
costs associated with the Expansion, see ibid., with state
spending projected to increase by at least $20 billion by
2020 as a consequence.  Statement of Douglas W. Elmen-

46

dorf, CBO’’s Analysis of the Major Health Care Legislation
Enacted in March 2010, p. 24 (Mar. 30, 2011); see also R.
Bovbjerg, B. Ormond, & V. Chen, Kaiser Commission on
Medicaid and the Uninsured, State Budgets under Federal
Health Reform: The Extent and Causes of Variations in
Estimated Impacts 4, n. 27 (Feb. 2011) (estimating new
state spending at $43.2 billion through 2019).  After 2019,
state spending is expected to increase at a faster rate; the
CBO estimates new state spending at $60 billion through
2021. Statement of Douglas W. Elmendorf, supra, at 24.
And these costs may increase in the future because of
the very real possibility that the Federal Government will
change funding terms and reduce the percentage of funds
it will cover.  This would leave the States to bear an in-
creasingly large percentage of the bill.  See Tr. of Oral
Arg. 74–-76 (Mar. 28, 2012).  Finally, after 2015, the States
will have to pick up the tab for 50% of all administrative
costs associated with implementing the new program, see
§§1396b(a)(2)–-(5), (7) (2006 ed., Supp. IV), costs that could
approach $12 billion between fiscal years 2014 and 2020,
see Dept. of Health and Human Services, Center for Medi-
caid and Medicare Services, 2010 Actuarial Report on the
Financial Outlook for Medicaid 30.

  In sum, it is perfectly clear from the goal and structure
of the ACA that the offer of the Medicaid Expansion was
one that Congress understood no State could refuse. The
Medicaid Expansion therefore exceeds Congress’’ spending
power and cannot be implemented.

F

 Seven Members of the Court agree that the Medicaid
Expansion, as enacted by Congress, is unconstitutional.
See Part IV–-A to IV–-E, supra; Part IV-–A, ante, at 45–-55
(opinion of ROBERTS, C. J., joined by BREYER and KAGAN,
JJ.). Because the Medicaid Expansion is unconstitutional,
the question of remedy arises. The most natural remedy

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