AUSTIN – The Medicaid expansion provisions of the Patient Protection & Affordable Care Act (ACA) are a “massive frontal assault on State sovereignty” and unconstitutionally coercive of state governments, argues an amicus curiae brief submitted yesterday to the United States Supreme Court by the Texas Public Policy Foundation and 36 members of the Texas Legislature.

“Title II of the Patient Protection and Affordable Care Act…contains Medicaid expansion provisions that will dramatically increase the fiscal burdens on States while drastically limiting their regulatory autonomy in providing health care,” the Foundation argues. “These burdens will fall disproportionately on Texas, where General Revenue Medicaid spending is projected to increase under the ACA by 48.7 percent in the first 10 years, more than in any other State.”

The Foundation’s brief was co-authored by Mario Loyola, Director of the Foundation’s Center for Tenth Amendment Studies; and Richard A. Epstein, the Laurence A. Tisch Professor of Law at the New York University School of Law, Senior Lecturer at the University of Chicago Law School, and the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution.

The Texas legislators who signed onto the Foundation’s brief are:

Rep. Jimmie Don Aycock (Killeen) Rep. Dennis H. Bonnen (Angleton) Rep. Cindy Burkett (Mesquite) Rep. Angie Chen Button (Richardson) Rep. William A. Callegari (Katy) Rep. Warren Chisum (Pampa) Rep. Brandon Creighton (Conroe) Rep. Drew Darby (San Angelo) Rep. John E. Davis (Houston) Rep. Joe Driver (Garland) Rep. Rob Eissler (The Woodlands) Rep. Gary Elkins (Houston) Rep. Dan Flynn (Van) Rep. Richard L. Hardcastle (Vernon) Rep. Patricia F. Harless (Houston) Rep. Linda Harper-Brown (Irving) Rep. Jim L. Jackson (Carrollton) Rep. James L. Keffer (Granbury) Rep. Tim Kleinschmidt (Lexington) Rep. George Lavender (Texarkana) Rep. Ken Legler (Pasadena) Rep. Tryon D. Lewis (Odessa) Rep. Sid Miller (Stephenville) Rep. Jim Murphy (Houston) Rep. Ken Paxton (McKinney) Rep. Charles Perry (Lubbock) Rep. Jim Pitts (Waxahachie) Rep. Connie Scott (Corpus Christi) Rep. Ralph Sheffield (Temple) Rep. Todd Smith (Bedford) Rep. Wayne Smith (Baytown) Rep. Larry Taylor (Friendswood) Rep. Raul Torres (Corpus Christi) Rep. Paul D. Workman (Austin) Rep. William Zedler (Arlington) Rep. John Zerwas (Simonton)

Medicaid was created in 1965 as a voluntary program jointly operated by the state and federal government. Since then, numerous expansions in the program’s size, scope, and requirements have served to concentrate power at the federal level. Today, federal benefit and eligibility requirements provide very little flexibility for states participating in the program.

The Foundation’s brief focuses on the conditions attached to the Medicaid program. The federal government taxes citizens of all the states to pay for the federal part of Medicaid, but only provides states with a share of those funds if they comply with a myriad of federal conditions.

According to the Foundation’s report, “Final Notice: Medicaid Crisis,” the Medicaid provisions of the ACA would increase Texas’ Medicaid caseload by 3.4 million people in 2014. Medicaid will become the largest line item in the 2014-15 Texas state budget – 46.6 percent of the all-funds budget – and require an additional $8.8 billion in Texas state revenues.

“The ACA’s Medicaid expansion provides a Hobson’s choice to state governments,” Loyola said. “Continuing in Medicaid allows the federal government to co-opt an ever-increasing share of their state budgets without regard for the policy preferences of their own citizens. Withdrawing from Medicaid means that their citizens are taxed heavily to support Medicaid in other states, and face additional taxes to maintain health care services to their current Medicaid populations – most of whom are subject to the individual mandate.”

“If the Supreme Court allows this massive frontal assault on state sovereignty to stand,” Loyola continued, “they will reduce state governments to nothing more than administrative subdivisions of Washington, DC. That is not the system of federalism enshrined in the U.S. Constitution by our nation’s Founders.”

In late March, the U.S. Supreme Court has set three days of oral argument in Florida v. HHS, one of the main lawsuits challenging the constitutionality of the 2010 federal health care reform law.

Amicus curiae, or “friend of the court,” may submit briefs with information and analysis that may help the court resolve legal issues in a particular case. The Foundation has submitted two such briefs for the Court’s consideration of Florida v. HHS – this brief on the Medicaid provisions, and one earlier this month on whether the individual mandate is functionally severable from other elements of the ACA.

Mario Loyola is Director of the Center for Tenth Amendment Studies at the Texas Public Policy Foundation.

The Texas Public Policy Foundation is a non-profit, free-market research institute based in Austin.

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