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Michigan Law prof. weighs in on less-publicized aspect of ACA

By Lori Atherton

As the U.S. Supreme Court scrutinizes President Obama's healthcare law, the focus has been on whether the individual mandate for all Americans to have health insurance will be upheld. But another significant piece of the Patient Protection and Affordable Care Act (ACA) is the expansion of Medicaid eligibility to nearly 17 million low-income people, and that question is the focus for Michigan Law Prof. Samuel Bagenstos.

"Everyone will have an obligation to make sure they have insurance, or they have to pay a penalty to the federal government," he said. "The Medicaid expansion is not as apparent to each individual, because it's a requirement that gets imposed by the federal government on states that accept federal funds. It's not something that each individual will see, but it is exceptionally important."

A civil rights law and disability rights law expert, Prof. Bagenstos is just one of several Michigan Law professors and other experts studying the issues raised by the healthcare law.

Last month, he and attorneys with the Judge David L. Bazelon Center for Mental Health Law filed an amicus brief on behalf of numerous education, health-care, veterans, child welfare, and disability organizations in Florida v. HHS, the lawsuit challenging the constitutionality of the ACA. The 26 states in the Florida case argue that the Medicaid expansion—which requires states to enroll citizens at 133 percent of the federal poverty line—unlawfully coerces states to participate by imposing conditions on how the money is spent.

Prof. Bagenstos and his team counter that the Florida challenge to the Medicaid expansion could jeopardize funding to other federal-state programs, including education, federal foster care, and other child welfare programs, which are similar to Medicaid in that the federal government gives money to the states, with the stipulation that the states will use the money under certain terms.

"This is important because the same constitutional power that Congress is relying upon in expanding Medicaid is the same power that supports federal aid to education, state child welfare programs, and a whole variety of programs that individuals rely on in their daily lives," Prof. Bagenstos said. "If Congress can't give the states money for health care and require the states to actually provide health care in a way that Congress envisioned it, then it also can't support these other aspects of people's lives in the way it has."

While the Supreme Court has suggested in other cases that a statute might be unconstitutional if it's coercive of the states, they've never defined what coercion means, Prof. Bagenstos said. And while the states argue that the Medicaid statute could be declared unconstitutional and coercive without affecting other statutes, Prof. Bagenstos believes the opposite is true.

"What we're trying to show in this brief is that to rule in the states' favor, is to threaten that entire edifice of those programs."

Michigan Legal Services attorney Gary Benjamin, who participated in an ACA panel discussion at Michigan Law on Monday, said, "It's not very likely this act will be found unconstitutional based on the coercion doctrine, but it is a danger. If this piece is declared unconstitutional, over half the newly covered people will be Medicaid people, and we would lose all that, which is probably a bigger damage to the Act in my mind than losing the mandate."

Prof. Bagenstos has been following the ACA's Medicaid statute since before it was enacted in 2010. His legal interests focus on Medicaid, disability rights, and congressional power. He has been working in the field of civil rights law—and in particular, disability rights law—since graduating from Harvard Law School in 1993.

Prof. Bagenstos returned to the Law School in January after serving in the U.S. Department of Justice as the Principal Deputy Assistant Attorney General for Civil Rights from 2009–2011. Last December, he was honored with a Bethesda Voices Public Policy Award in recognition of his work protecting the rights of disabled people while helping lead the Justice Department.


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