During Wednesday's Supreme Court oral arguments for Medina v. Planned Parenthood South Atlantic, Justice Clarence Thomas questioned an attorney on the language necessary for Medicaid coverage guarantees.
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NewsTranscript
00:00will be meaningless.
00:01I welcome the court's questions.
00:05Do you think that rights creating language
00:10under the enumerated powers is different from the language
00:15required under the Spending Clause?
00:18Well, so the court has said in Spending Clause cases
00:22that the Congress has to speak unambiguously.
00:24But at the same time, there's many cases
00:26in which the court has required clear statements
00:29from Congress, and it has said, we
00:30don't require magic words from that.
00:32Our job is to figure out, what did Congress intend?
00:35So we look at the words that Congress enacted
00:37and figure out what Congress intended.
00:39And I think the way that you can tell that the word right
00:42is just a magic words test here, I
00:44think from my friends on the other side
00:46and why you don't need it, is because the statute here
00:48would do the exact same thing if it said the word right,
00:51as opposed to what it says now.
00:53So how would this, if it's more demanding under the Spending
00:58Clause, how would the statute differ under the Commerce
01:02Clause?
01:04What language would you use if this right were created
01:09under the Commerce Clause?
01:11Well, I think it creates a right either way.
01:13I think there's Congress can write statutes.
01:15Well, I'm talking about the language.
01:17If it's more demanding and it's atypical,
01:20what language that we have here you would not
01:26need in the Commerce Clause.
01:29Well, first, it's talking about a state obligation.
01:31And it's something the state must do to participate.
01:33So it starts by saying that it's a mandatory obligation.
01:36Second, it says that there's any individual
01:39may obtain care from any qualified and willing provider.
01:44So it's a combination of any individual
01:47may obtain care from any qualified and willing provider.
01:50It disables the state from doing something the state might
01:53otherwise want to do.
01:56We want to take this provider out
01:57of Medicaid for a reason that's unrelated
01:59to medical qualifications, which is
02:00what the state is doing here.
02:02And so it's just the combination of this language
02:04makes clear what this provision is doing.
02:06I don't think anyone disagrees what this provision is about.
02:09Maybe there's some.
02:10Do you think that language is more exacting
02:13than would be required under the Commerce Clause?
02:17I don't.
02:18I'm not certain.
02:21I think the court has said that in the Spending Clause
02:24context that Congress needs to speak clearly.
02:27My point is just that Congress has spoken clearly here
02:30because it has used what this court requires.
02:33The court says, we want to look to see
02:34if there's individual-centric rights-creating language that
02:38imposes a mandatory obligation.
02:39The court has never said it has to say the word right
02:42or it has to be magic words or anything like that.
02:44And just to pick up on this idea that we heard maybe
02:47for the first time today that there are only
02:49certain magic words that count, there's
02:50some real problems with that from a separation of powers
02:53perspective.
02:54Congress writes statutes.
02:55It's this court's job to interpret them and figure out
02:58what Congress intended.
03:00And here, it's not like Congress just wrote this statute
03:0250 years ago and nothing has happened.
03:04Congress has come back when this court has interpreted
03:06the statute in a way that Congress thought
03:10was inappropriate with the suitor fix.
03:12And that's a case where, as one of the factors that
03:14was considered for whether language created
03:17an individual right, not the sole factor,
03:19but as one of the factors, this court
03:20said in the suitor decision, we see
03:22that it's part of the state plan requirements.
03:24And Congress came back with language
03:26that I think was quoted by one of the justices that said,
03:28you know, no, that can't be a reason why because.
03:32I'm sorry, finish your sentence, please.
03:33It just can't be a reason why.