I think I have said from the beginning that the Medicaid question has potentially bigger long-term implications for the federal-state balance in our constitutional system. For if the ACA's expansion of Medicaid constitutes an impermissible "commandeering" of the states, it is unclear where the line of "practical coercion" stops. Much of federal spending legislation--indeed, a majority of the dollars provided to the states by the federal government--could well be unconstitutional.
Which is why, at the end of the day, I do not think the Court will have the stomach for going down that road, no matter how impractical it might be for the states to turn down those billions of Medicaid dollars. The spending power is ultimately limited by the federal government's practical ability to fund the applicable programs, and that may be enough for the Court.
If I am right about this, then tomorrow is really the main event. The Court will hear two hours of argument--one hour from the Solicitor General, 30 minutes from Paul Clement, and 30 minutes from Michael Carvin. And the basic question the Court will be exploring--the breadth of the National Government's legislative powers, and the domain reserved exclusively to the states--is as old as the Republic. We have really never stopped debating the issue since that gathering in Philadelphia in the summer of 1787. We probably never will.
There are a number of important things to watch for. (A subject for a post later tonight, time permitting.) But those matters have been explored thousands of times over the past two years. At this point, my reaction is less intellectual than emotional: we are finally here, the day the mandate goes before the Court. Should be fun.
