Republicans’ plan to strip healthcare from ‘blue states’ could be unlawful

One of the more charming elements of the Republican plan to strip health coverage from millions of Americans is a formula propounded in the “Graham-Cassidy” bill that would punish states that expanded Medicaid coverage under the Affordable Care Act (Obamacare). Under the new formula, what little federal money is left would be diverted away from those states and to the states that did not expand Medicaid coverage under the ACA.

The stated theory would be that because some states have been receiving more Medicaid support from the federal government than other states, the states that have received more support have enjoyed an unfair windfall at the expense of those states that, in their enthusiasm for restraint and self-sacrifice, passed on the extra money.

The real story, of course, is that states with Democratic governors mostly accepted the extra federal Medicaid money because it was a great deal for their citizens while states with Republican governors mostly eschewed the extra federal Medicaid money because it was associated with Barack Obama, our nation’s first African-American president.

In other words, ‘blue states’ accepted the money and ‘red states,’ despite the harm they were causing real people with grave medical concerns, turned the money down.

So what’s going on with the Graham-Cassidy redistribution formula? Quite obviously, as any fair-minded federal judge will discern, it is on its face an attempt to stick it to sick people in more liberal states while block-granting more money to Republican governors for distribution to their wealthy donors (and maybe a few conservative sick people, too). It’s a bald attempt to take healthcare money from Democrats and give it to Republicans.

Republicans don’t have any ideas about how to govern. Their project is to disable the federal government, torpedo any national project that hasn’t to do with war profiteering, and fleece ignorant rubes with fear-based appeals about guns and gays and God. Most Americans are not on board with this project, so Republicans have resorted to gerrymandering and other measures to suppress the votes of those groups more disinclined to abide the dissolution of our nationhood on the altar of “states’ rights” tribalism.

I must confess, however, to some surprise at the lengths to which Republicans will go to stop liberals from winning elections. We knew Republicans would impose onerous voter identification laws, scrub voter rolls in Democratic-leaning districts, imprison vast swaths of minority populations to disenfranchise millions, and even accept help from Vladimir Putin, but it was hard to foresee that Republicans would try to stop Democrats from voting by killing them off (or at least letting them die).

This effort might run into a constitutional problem. In a 1973 case called US Department of Agriculture v Moreno, the US Supreme Court addressed the constitutionality of a law passed by Congress that withheld food-stamp eligibility from people living in households with unrelated cohabitants. The Court struck down the law as unconstitutional. It reasoned that the law was passed to target “hippies” and hippie communes. And in an oft-cited passage, the Court stated that political animus, defined as a “bare desire to harm a politically unpopular group,” can never form the legitimate basis for a law. The Court ruled that the law violated the equal-protection principle enshrined in the Fifth Amendment’s Due Process Clause.


And what does Graham-Cassidy’s formula reflect but a bare desire to harm liberals and Democrats? It does not restore some balance, as every state had the choice to avail itself of increased Medicaid funding under the ACA; Republican states were not excluded from the program or targeted for disfavor. The formula, rather, is an effort to buy off Republican votes in Congress by salving the political wounds of healthcare ruination with the balm of political animus: do this, Graham-Cassidy says, and it will hurt liberals more than conservatives — and in today’s Republican Party, that is good enough reason to do anything.