The Republican Governors of Arizona, Florida and Ohio who helped lead the constitutional challenge to ObamaCare but have since decided to expand Medicaid have a problem. They need to persuade their skeptical Republican legislatures to pass bills endorsing their flips, and now they're searching for any legal alibi in a storm.
One of their main claims, advanced by Ohio's John Kasich and others, is that states can change their minds later. Expand Medicaid today and pocket the 100% funding Washington is dangling in front of them for a time, but include so-called "sunset" clauses that would rescind the new coverage if Medicaid proves too costly or if the feds renege on their free-money promises.
A memorandum from the Columbus law firm Bricker & Eckler for the Ohio Hospital Association argues that "nothing" in the Affordable Care Act or its Supreme Court reinterpretation prevents the Buckeye State or any other from opting out without being punished, as long as they include the right caveats. Mr. Kasich is using this memo as his legal justification, but he needs better representation.
These supposed sunset clauses are really a roach motel. Once states check into new Medicaid, the almost certain legal reality is that they can never check out.
The Affordable Care Act mandated that states convert this joint state-federal program into a new, larger and far more expensive project in perpetuity. Democrats did not include any provision or opt-out clause that would let states leave new Medicaid in the future or revert to Medicaid in its old form. Democrats even wrote the bill so that if states failed to join new Medicaid, they would lose every federal Medicaid dollar, including the ones for the old program.
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