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Volume 27 • Number 3

July 2013



In Defense of the ACA's Medicaid Expansion

by Ishani Maitra and Brian Weatherson

The only part of the Patient Protection and Affordable Care Act (hereafter, "the ACA") struck down in National Federation of Independent Business et al. v. Sebelius, Secretary of Health and Human Services, et al. (NFIB v. Sebelius) was a provision expanding Medicaid. We will argue that this was a mistake; the provision should not have been struck down. We'll do this by identifying a test that Chief Justice Roberts used to justify his view that this provision was unconstitutional. We'll defend that test against some objections raised by Justice Ginsburg. We'll then go on to argue that, properly applied, that test establishes the constitutionality of the Medicaid provision.

To say just what the provision in question is, it will help to have before us the distinctive structure of Medicaid. Each state runs its own Medicaid program, with substantial financial support from the federal government. There are several conditions that a state Medicaid program must satisfy in order to qualify for this federal support, and which all fifty states do currently satisfy. In particular, there have always been minimum coverage requirements. Before the ACA, these minimum coverage requirements were a bit of a hodgepodge.

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ISSN: 2152-0542