NFIB Sebelius Dissent



would be to invalidate the Medicaid Expansion.  However,
the Government proposes-—in two cursory sentences at
the very end of its brief—-preserving the Expansion.  Under
its proposal, States would receive the additional Medi-
caid funds if they expand eligibility, but States would
keep their pre-existing Medicaid funds if they do not
expand eligibility. We cannot accept the Government’’s

  The reality that States were given no real choice but to
expand Medicaid was not an accident. Congress assumed
States would have no choice, and the ACA depends on
States’ having no choice, because its Mandate requires
low-income individuals to obtain insurance many of them
can afford only through the Medicaid Expansion. Fur-
thermore, a State’s withdrawal might subject everyone in
the State to much higher insurance premiums.  That is
because the Medicaid Expansion will no longer offset the
cost to the insurance industry imposed by the ACA’’s in-
surance regulations and taxes, a point that is explained in
more detail in the severability section below.  To make the
Medicaid Expansion optional despite the ACA’’s structure
and design “”‘would be to make a new law, not to enforce
an old one. This is no part of our duty.'” Trade-Mark  
Cases, 100 U. S. 82, 99 (1879).

  Worse, the Government’’s proposed remedy introduces a
new dynamic: States must choose between expanding
Medicaid or paying huge tax sums to the federal fisc for
the sole benefit of expanding Medicaid in other States. If
this divisive dynamic between and among States can be
introduced at all, it should be by conscious congressional
choice, not by Court-invented interpretation.  We do not
doubt that States are capable of making decisions when
put in a tight spot. We do doubt the authority of this
Court to put them there.

  The Government cites a severability clause codified with
Medicaid in Chapter 7 of the United States Code stating


that if ““any provision of this chapter, or the application
thereof to any person or circumstance, is held invalid, the
remainder of the chapter, and the application of such
provision to other persons or circumstances shall not be
affected thereby.”” 42 U. S. C. §1303 (2006 ed.). But that
clause tells us only that other provisions in Chapter 7
should not be invalidated if §1396c, the authorization for
the cut-off of all Medicaid funds, is unconstitutional.  It
does not tell us that §1396c can be judicially revised, to
say what it does not say. Such a judicial power would
not be called the doctrine of severability but perhaps
the doctrine of amendatory invalidation-—similar to the
amendatory veto that permits the Governors of some
States to reduce the amounts appropriated in legislation.
The proof that such a power does not exist is the fact that
it would not preserve other congressional dispositions, but
would leave it up to the Court what the ““validated”” legis-
lation will contain. The Court today opts for permitting
the cut-off of only incremental Medicaid funding, but it
might just as well have permitted, say, the cut-off of funds
that represent no more than x percent of the State’s bud-
get. The Court severs nothing, but simply revises §1396c to
read as the Court would desire.

  We should not accept the Government’’s invitation to
attempt to solve a constitutional problem by rewriting the
Medicaid Expansion so as to allow States that reject it
to retain their pre-existing Medicaid funds.  Worse, the
Government’s remedy, now adopted by the Court, takes
the ACA and this Nation in a new direction and charts a
course for federalism that the Court, not the Congress, has
chosen; but under the Constitution, that power and au-
thority do not rest with this Court.


 The Affordable Care Act seeks to achieve “”near-