it's not insistent with what we want to accomplish. we're just going to to do away with the system and start a new health care plan of some sorts. and states, you can take the new plan, you can leave them, we're going to give out 20% less. maybe 20% more, depending on what congress chooses. can congress do that? does it have to continue the old system? because what is what the states relying upon and it's coercive now to give them a new system? >> we're not saying we have a vested right to participate in the medicaid program. as it exists now. if the congress wanted to scrap the current system and have a new one, i'm not going to tell you there's no possibility of a coercion challenge to it. >> i want to know how i draw the line.

meaning, i think the usual definition of coercion is, i don't have a choice. i'm snot sure why it's not a choice for the states. they may not pay for something else. if they don't take medicaid and they want to keep the same level of coverage, they may have to make cuts in their budget to other services they provide. but that's a political choice of whether they choose to do that or not. but when have we defined the limited right of government not to spend money in the ways it thinks appropriate? >> justice sotomayor, i'm going to try to answer that question, too. but what if congress just tried to scrap this and start over with a new program? here's why it's fundamentally different and many coercive. congress is not saying they want to scrap the program. they don't have a single complaint with the way states are providing services to the visually impaired and disabled

under pre-existing medicaid. that's why it's particularly questionable why they're saying if you don't take our new money, subject to the new conditions, we're going to take all of the money you've previously gotten, that you've been dependent on for 45 years and you're using right now to serve the visually impaired and the disabled. >> may i ask you a question. you represent 26 states. >> that's right. >> but we're also told that there are other states that like this expansion. and they are very glad to have it. the relief that you're seeking is to say the whole expansion is no good, never mind that there are states that say we don't feel coerced, we think this is good. you are saying that, because you represent a sizable number of

states, you can destroy this whole program even though there may be as many states that want it. that don't feel forced to say this is a good thing. >> justice ginsburg, that's right. but that that shouldn't be a terrible concern, because if congress wanted to do what it did in 1972 and pass a statute that makes the expansion volunta voluntary, every state that thinks this is a great deal can sign up. what's telling here, though, is 26 states who think this is a bad deal for them actually are also saying that they have no choice but to take this because they can't afford to have their entire participation in this 45-year-old program wiped out. and they have toe go back to square one and try to figure out how they're going to deal with the visually impaired in their state. the disabled in their state. >> mr. clement, i didn't take the time to figure this out, but maybe you did. is there any chance at all 26 states opposing it have republican governors? and all of the states supporting

it have democrat governors. is that possible? >> there's a correlation. >> let me ask you another thing. most colleges and universities are heavily dependent on the government to fund research programs and other things. that's been going on for a long time. and then title nine passes and a government official comes around and says to this fellow, do you want money for your physical ed and all the other things you get it for, then you have to create an athletic program for girls. and the recipient says, i am being coerced. there's no way in a world i can give up all the funds to run all the labs we have. i can't give it up. i'm being coerced to accept this

program i don't want. if your theory is any good, why doesn't it work anytime something -- someone receives something that's too good to give up? >> well, justice ginsburg there's two reasons that might be different. one is this whole line of coercion only applies, is only relevant when congress tries to do something through the spending power it couldn't do directly. so if congress tried to impose title nine directly i guess the question for this court would be whether section 5 of the 14th amendment allowed congress to do that. i imagine you think it did. but that's the nature of the question. one way around that would be if congress can do it directly, you don't have to ask if there is something special about spending power. that's how this court resolved the case about funding -- >> i'm trying to understand your coercion theory. i know there are cases that have said there's a line between

pressure and coercion. but we have never had in the history of this country or the court any federal program struck down because it was so good that it becomes coercive to be in it. >> justice ginsberg, the second thing about my answer to your prior question, i also think that it may be that spending on certain private universities is something again that congress can do and it doesn't matter if it's coercion. but when they're trying to get the states to expand their medicaid programs. >> let's take public colleges. >> then there may be some limits on that. again, i'm not sure even in that context there might be some things congress can do. it's a separate question. but once we take the premise, i don't think there's a disagreement here that congress could not simply as a matter of direct legislation you should the commerce power or something say state, you must expaend your medicaid programs. if we take that as a given, then i think we have to ask the question of whether or not it's coercive. in your second question, you

asked, well, where's the case that says we've crossed that line? and this is that case. >> it doesn't apply well to the 1980 extension to children 0 to 6 years old? 1990 requiring the extension for children up to 18. all the prior extensions to me seem just as big an amount. just about as big in the number of people come on the rolls. and they're all governed by the same stat tut that you're complaining of here that's been in law since '65. >> justice breyer, i don't think our position would extend to the 1984 amendment. let me tell you why. i'm not saying absolutely guaranteed that's no coercive, but here's the reason why they're different. one major difference is the size of the program. the expansion of medicaid since 1984 is really breathtaking. in 1984, the federal spending was a shade over $21 billion.

right now it's $250 billion. and that's before the expansion on the statute. >> well, if you're right, doesn't that mean that medicaid is unconstitutional now? >> not necessarily, justice kagan. and again, it's because we're not here with a one-trick pony. one of the factors -- we point to three factors that makes this statute uniquely coercive. one is the sheer size of this program. and if you want a gauge on the size of the program, the best place to look is the government's own number. footnote six. >> so when does a become too big? give me a dollar number. >> $3.3 trillion over the next ten years. >> the amount approximately if you look into it as a percentage of gdp, it's big. but it was before this, somewhere about 2-point-something percent below of gdp. it will go up to a little above 3% of gbp. now go look at the comparable

number, which i did look at with the expansion that we're talking about before. the expansion from 0 to 18 or even 0 to 6. and while you can argue those numbers, it's pretty hard to argue that they aren't roughly comparable as a percentage of the prior program or as a percentage of gdp. if i'm right on those numbers, or even roughly right, i don't guarantee them, then what you have to say well, indeed, medicaid has been unconstitutional since 1964. and if not, why not? >> the answer is no. that's because we're here saying three things make this unique. >> what are your second and third? i'm on pins and needles. >> one is the sheer size. two is the fact that this statute is uniquely tied to an individual mandate that is decidedly nonvoluntary. and three is the fact that they've leveraged prior

participation in the program notwithstanding that they've broken this out as a separately segregated fund going forward. >> so on the third, suppose you have the current program and congress wakes up tomorrow and says we think there's too much fraud and abuse in the program and we're going to put a new condition on how the states use this money so we can prevent fraud and abuse and we're going to tie it to everything that's been there initially. unconstitutional? >> no, i think that's something congress could do directly. wouldn't have to limit that to the spending program. i think 18 usc 1666 is in the code. it may be tied to spending but that's a provision that i don't think is constitutional called into question. >> i guess i don't get the idea. congress can legislate coverage expansions in medicaid. >> i think there's a difference. but if i'm wrong and they have

to break medicaid down into remotely manageable pieces before the expansion, i don't think that would be the end of the world. but i would ask you to focus on what's going on here. they take these newly eligible people, and that's a massive change in the way the program works. these are people who are healthy, childless adults who are not covered in many states. they say okay, we're going to make you cover those. we're going to have a separate program for how you get reimbursed for them. you get reimbursed differently. but if you don't take our money we're going to take away participation in the fram for the visually impaired and disabled. >> i'm not sure my colleagues have exhausted their questions. >> my greatest fear, mr. clement, with your argument is the following, the bigger the problem, the more resources it needs. we're going to tie the hands of

the federal government in choosing how to structure cooperative relationship with the states. we're going to say to the federal government, the bigger the problem, the less your powers are. because once you get that much money, you can't structure the program the way you want. it's our money, federal government. we're going to have to run the program ourselves to protect all our interests. i don't see where to draw that line. the uninsured are a problem for states only because they, too, politically, just like the federal government, can't let the poor die. and so to the extent they don't want to do that, it's because they feel comfortable to the citizenry. so if they want to do it their way, they have to spend the money to do it their way. if they don't want to do it the federal way.

so i just don't understand the logic of saying states, you're not entitled to our money. but once you start taking it, the more you take, the more power you have. >> i actually think that misdescribes what happened with medicaid. states were, as you suggest, providing for the poor and the visually impaired and the disabled, even before medicaid came along. then all the sudden the federal government says, look, we would like to help you with that, and we're going to give you money voluntarily. then over time they give money more with more conditions and now they decide they're going to totally expand the program and they say you're going to have to give up even your prior program where we first came in and offered you cooperation, we're now going to say you have to give that up if you don't take our new conditions. secondari secondarily, i think that our principle is not, once you get

past a certain level it doesn't automattic become coercive per s, but when you get a program and you're basically telling states that we're going to take away $3.3 trillion over the next 10 years, that it's not coercive you should the statute. we're not saying this is an area where it's gong to be easy to draw the line. we're saying it's exceptionally important to draw that line and this is the place where it ought to be easily so establish a beachhead, say coercion matters, there's three factors that make it obviously coercive as any legislation as you have ever seen, then you will have effectively told congress there are limits and laid down some rules. >> as the chief has said, i can ask this. he doesn't always check. as i recall your theory, it is

that to determine whether something is coercive, you coere side how much you're threatened with losie ining or offered to receive and the other side doesn't matter. i don't think that's realistic. i think, you know, the old jack benny thing, your money or your life, and he says, i'm thinking, i'm thinking. it's funny because there's no choice. your life again is just money. it's an easy choice. no coercion, right? i mean right? now whereas if the choice were your life or your wife's, that's a lot harder. is it coercive in both situations? >> well, yes, it is. >> really? >> it's a tough choice.

>> i thought you were going to say this statute is your money and your life. >> it is, but i mean -- i might have missed something, but both of those seem to be the solution. >> when you say you're coerced, it means you've been given an offer you can't refuse, you can't refuse your money or your life, but your wilife or your wife's? i could do that one. >> he's not going home torrent. >> i'm talking about my life, take mine, you know? >> i wouldn't do that either. >> i'm not going to use that example, forget about it. that's enough frivolity for a while. i want to make sure that i understand where the meaningfulness of the choice is taken away. is it the amount that's being offered that it's just so much

money of course you can't turn it down or is it the amount that's going to be taken away if you don't take what they're offering? >> it's both, your honor. there's three strings in this bow, the sheer amount of money here makes it very, very difficult to refuse, because it's not money that's come from china or the export tariffs like in the old days, it's coming from the taxpayer, so that's part of it. the fact that they're being asked to give up their continuing participation of a program which they have been participating in for 40-something years. >> how -- to take the federal government's money? and it seems to me that they have compromised their status as independent sovereigns because they are so dependent on what the federal government has done, they should not be surprised that the federal government --

they tied the strings, they shouldn't be surprised that the federal government isn't going to start pulling them. >> with all due respect, i just think it too important, the consequence of saying we're not going to police the coercion line here, shouldn't be it's just too hard so we'll give congress unlimited spending power. if you really can't complete in line then eyou should go back and say congress can spend money on things they can't pay for directly. there depends on being a line between coercion -- >> i don't understand your first answer to justice kagan. you don't see there being a difference between the federal government saying we want to take care of the poor. states, if you do this, we'll pay 100% of your administrative

costs. you said that could be coercion. doesn't the amount of burden that the state undertakes to meet the federal obligation count in this equation at all? >> it certainly can, justice sotomay sotomayer. i didn't mean to suggest in answering mr. kagan's question was anything better than that that hypothetical. but the nature of the things, that i do think the amount of the money, even considered alone does make a difference and it's precisely because it has an effect on their ability to raise revenue from their own citizens so it's not just free money that they're turning down if they want to. >> if we go back to that era of matching what a state pays to what a state gets, florida loses, its citizens pay out much less than what they get back in federal subsidies of all kinds, so you can't really be making the argument that florida can't

ask for more than it gives because it's really giving less than it receives. you don't really want to go back to that point, do you. >> then i'll make that -- it's one aspect of what makes this statute uniquely coercive, and i think if you ask the question, what explains the idea that if you don't take this new money, you're going to lose all your money what you've been doing for 45 years to help out the vizly impaired and the disabled. nobody wants the congress to stop doing that, it's purely coercion. it's leverage, pure and simple. >> if the inevitable consequence of your position was that the federal government could just do this on its own, the federal government could have medicaid and medicare and these insurance regulations, assume that's the truth, then how are the interests of federalism

concerned? how does the interest of federalism concerned if in florida or texas or some of the other objecting states, there are huge federal bureaucracies doing what this bill allows the state bureaucracies do. i would just like your answer. >> the one word answer is accountability. if the federal government decides to spends money through federal instrumentalities, they can bring a federal complaint to a federal agency. the federal government knows that the citizenry is not going to take lightly that there are huge federal bureaucracies-o'-of administering this -- it makes it very -- do they complain to the state official? >> that is very confusing because the idea behind cooperative federal state programs was exactly a

federalism idea. it was to give the states the ability to administer those programs, it was to give the states a great deal of flexibility in running those programs and that's exactly what medicaid is. >> that's exact lip what medicaid was. i absolutely take your case. cooperative federalism is a beautiful thing. mandatory federalism has very little to oppose it. >> it does not mean there are no federal restrictions involved in a program that uses 90% here, 100% federal money. it means there's flexibility built into the program subject to certain rules that the federal government has about how it wishes its money to be used. it's like giving a gift certificate. if i give you a gift certificate for one store, you can't use it for other stores, but still, you can use it for all kinds of different things. >> i absolutely agree that if

it's cooperative federalism and the states have is choices, then that is perfectly okay. but when -- that's why voluntariness and coercion is so important. because if you force the state to participate in a cooperative program. a state official shouldn't explain if a state is administering a federal program that it volunteered to participate in. but who do they complain to at the federal level? i'm not saying it's the best solution to have federal instrumentalities in every state. but it's better than what you get when you have mandatory federalism. >> thank you, mr. clement. >> mr. chief justice, may it please the court, the affordable

care act's provisions will provide millionings of americans to have access to health care that they cannot now afford. it's an effort of spending power that complies with all of the -- and the states do not contend otherwise. the states are asking this court to do something unprecedented, which is to declare this an impermissively coercive enterprise. >> what is it that you thought we meant in those prior decisions when you said that the federal government cannot be coercive. give us a hypothetical. >> i think what the court said and in dole is that it's possible that you might envision a situation in which there is coercion. but i can think of something. one example i can think of that might serve as a limit wouldbe