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by Andrew Kreig
Democratic Supreme Court Justice Elena Kagan joined conservative justices June 28 in a 7-2 vote to strike down Medicaid expansion by states under the Obama-backed Affordable Care Act. Kagan, at left, joined the first ruling since the 1930s to void federal legislation for exceeding congressional power under the Commerce Clause.
Her vote has escaped major attention in the general media because a separate 5-4 majority, including her, upheld the law's insurance mandate on the grounds that Congress could impose it as a "tax." But her legal rationale has important long-term consequences for other federal legislation if the Court starts returning to a theory court conservatives used during the New Deal until 1937 to thwart Democratic legislation.
Legal critic Glenn Greenwald noted problems with her opinion in a Salon column excerpted below entitled, Kagan’s Medicaid vote. Greenwald, like the Justice Integrity Project, opposed Kagan's Senate confirmation to Supreme Court in 2010. Our Project did so out of concerns over her commitment to civil rights. Greenwald shared those views, but also regarded her as a shaky replacement for Republican liberal John Paul Stevens.
Greenwald wrote July 7:
The Supreme Court’s health care ruling two weeks ago provides perhaps the most potent example yet justifying these concerns about Kagan. Although it was John Roberts’ ideological apostasy that has received the most attention, Kagan joined with the Court’s five right-wing Justices (as well as Stephen Breyer) to strike down one of the most important provisions of the bill — its Medicaid expansion program — on the ground that it was unconstitutionally coercive of the states (by threatening states with a loss of benefits for non-participation); on that issue, it was Sotomayor and Ginsburg in dissent.
Greenwald, citing also a Politico analysis, concluded:
Kagan voted for portions of Chief Justice John Roberts’s controlling opinion declaring unconstitutional a major provision in President Barack Obama’s health care law, namely the Medicaid expansion. While Roberts has been denounced by conservatives as an ideological heretic and turncoat for siding with liberals to uphold the individual mandate in the law, Kagan’s conclusion that the law’s Medicaid expansion was unconstitutionally coercive toward the states has triggered no similar wave of condemnation of her by liberals.
The absence of public outrage toward Kagan is particularly notable since she wasn’t parting company just with her liberal ideological counterparts, but with the president who appointed her to the court and with the administration she served as Solicitor General immediately prior to taking the bench.
“Who knew that the Solicitor General thought the Medicaid expansion was unconstitutional?” said Kevin Outterson, a law professor at Boston University who filed an amicus brief urging the court to preserve the Medicaid provisions as written. Asked how likely he thought it was prior to Thursday’s ruling that Kagan would wind up taking such a stance, Outterson said: “Never in my wildest nightmares.”
:: photo courtesy of Harvard Law Record via Creative Commons license ::
Andrew Kreig is a Washington-based non-profit executive, attorney and investigative reporter who directs the non-partisan Justice Integrity Project, a legal reform group.