          United States Court of Appeals
                        For the First Circuit

No. 14-1300

        MARY C. MAYHEW, in her capacity as Secretary of
       the Maine Department of Health and Human Services,

                              Petitioner,

                                  v.

       SYLVIA M. BURWELL, in her capacity as Secretary of
        the U.S. Department of Health and Human Services,

                              Respondent,

                                  and

  JANET T. MILLS, in her capacity as Attorney General of Maine,

                              Intervenor.


              PETITION FOR REVIEW FROM A DECISION OF THE
                DEPARTMENT OF HEALTH AND HUMAN SERVICES


                                Before

                          Lynch, Chief Judge,
                   Selya and Barron, Circuit Judges.


     Clifford H. Ruprecht, with whom Christopher T. Roach,
Geraldine G. Sanchez, and Roach, Hewitt, Ruprecht, Sanchez &
Bischoff, P.C. were on brief, for petitioner.
     Alisa B. Klein, Appellate Staff Attorney, with whom Beth S.
Brinkmann, Deputy Assistant Attorney General, Mark B. Stern,
Appellate Staff Attorney, Stuart F. Delery, Assistant Attorney
General, William B. Schultz, General Counsel, Janice L. Hoffman,
Associate General Counsel, Susan Maxson Lyons, Deputy Associate
General Counsel for Litigation, and Bridgette Kaiser were on brief,
for respondent.
     Christopher C. Taub, Assistant Attorney General, with whom
Janet T. Mills, Attorney General, was on brief, for intervenor.
     Martha Jane Perkins, Catherine McKee, and Jack Comart on brief
for National Health Law Program, Maine Equal Justice Partners,
Maine Psychological Association, Maine Chapter of the American
Academy of Pediatrics, Maine Medical Association, Preble Street,
Maine Children's Alliance, and Young Invincibles, amici curiae.



                        November 17, 2014
            LYNCH, Chief Judge.       After providing Medicaid coverage

for over 20 years for 19- and 20-year old children whose families

met low-income requirements, in 2012, Maine DHHS1 sought to drop

that coverage by proposing an amendment to its Medicaid state plan.

The   federal    Department   of    Health      and   Human   Services     (DHHS)

Secretary   disapproved     the    amendment,     stating     that   it   plainly

violates a federal statute, 42 U.S.C. § 1396a(gg), part of the

Patient Protection and Affordable Care Act ("ACA"), Pub. L. No.

111-148, 124 Stat. 119 (2010).        Section 1396a(gg) requires states

accepting Medicaid funds to maintain their Medicaid eligibility

standards for children until October 1, 2019.

            Maine DHHS now petitions for review, arguing that the

federal disapproval is unconstitutional.                It says that under

portions    of   National   Federation     of    Independent    Businesses     v.

Sebelius (NFIB), 132 S. Ct. 2566 (2012), § 1396a(gg) as applied

here is unconstitutionally coercive in violation of the Spending

Clause and, independently, that it violates Maine's right to equal



      1
          "Maine DHHS," as used in this opinion, refers to
petitioner Mary C. Mayhew, in her capacity as Secretary of the
Maine Department of Health and Human Services.      Maine DHHS has
petitioned for judicial review of the decision of the U.S.
Department of Health and Human Services disapproving Maine's
proposed state plan amendment.      Maine's Attorney General has
declined to represent Maine DHHS in this lawsuit, citing "strong[]"
disagreements with the state agency "as a matter of law and public
policy." The Maine Attorney General authorized outside counsel for
Maine DHHS and has intervened in this suit on the side of
respondent Sylvia Burwell, in her capacity as Secretary of the U.S.
DHHS.

                                     -3-
sovereignty as recognized in Shelby County v. Holder, 133 S. Ct.

2612 (2013), and like cases.

              The United States says the statute as applied here is

constitutional, fitting easily within congressional spending power

to condition federal Medicaid grants.           The Attorney General of

Maine, Janet T. Mills, as interested party-intervenor, argues that

the rejection of Maine DHHS's proposed amendment is constitutional.

And amici health professionals explain the history and importance

of the Medicaid health care provisions for this age group.2

              For the reasons that follow, we hold that the statute is

constitutional as applied here.

                              I.   Background

              The Medicaid Act, 42 U.S.C. § 1396 et seq., first enacted

in 1965, provides federal funds to states to assist them in paying

for the medical care of needy individuals.          NFIB, 132 S. Ct. at

2581.       The Secretary of the U.S. DHHS administers the Medicaid

program through the Centers for Medicare and Medicaid Services

(CMS).      Ark. Dep't of Health & Human Servs. v. Ahlborn, 547 U.S.

268, 275 (2006).

              "States are not required to participate in Medicaid, but

all of them do."       Id.   Maine began participating in Medicaid in

1966, shortly after the program's inception.          See U.S. Advisory



        2
          We express our appreciation to the amici for their
assistance.

                                    -4-
Comm'n on Intergovernmental Relations, Intergovernmental Problems

in Medicaid 19 (1968), available at http://digital.library.unt.edu/

ark:/67531/metadc1397/m1/35/?q=maine.             "In     order   to     receive

[Medicaid]   funding,   States   must    comply    with    federal      criteria

governing matters such as who receives care and what services are

provided at what cost."       NFIB, 132 S. Ct. at 2581.           To this end,

"States must submit to . . . CMS . . . a state Medicaid plan that

details the nature and scope of the State's Medicaid program.

[States] must also submit any amendments to the plan that [they]

may make from time to time.      And [they] must receive the agency's

approval of the plan and any amendments." Douglas v. Indep. Living

Ctr. of S. Cal., Inc., 132 S. Ct. 1204, 1208 (2012).               CMS reviews

the states' plans and their proposed amendments "to determine

whether they comply with the statutory and regulatory requirements

governing    the   Medicaid    program."      Id.       (citing    42     U.S.C.

§§ 1316(a)(1), (b), 1396a(a), (b); 42 C.F.R. § 430.10 et seq.).

            When Congress passed the Medicaid Act, it expressly

reserved "[t]he right to alter, amend, or repeal any provision" of

the Medicaid statute.    NFIB, 132 S. Ct. at 2605 (quoting 42 U.S.C.

§ 1304).     It has exercised that power.         Congress has, in fact,

provided greater Medicaid eligibility on numerous occasions.                From

the start, the Act has mandated coverage for certain children, and

over time it has increased the eligibility by changing age and

income requirements.    See Social Security Amendments of 1965, Pub.


                                   -5-
L. No. 89-97, sec. 121(a), § 1902(b), 79 Stat. 286, 348 (codified

at 42 U.S.C. § 1396a(b) (1969)).      For example, approximately 25

years ago, "Congress required participating States to include among

their beneficiaries pregnant women with family incomes up to 133%

of the federal poverty level, children up to age 6 at the same

income levels, and children ages 6 to 18 with family incomes up to

100% of the poverty level."   NFIB, 132 S. Ct. at 2631 (Ginsburg,

J., dissenting).

           Before the expansion of Medicaid effected by the ACA in

2010, Medicaid did not require states to cover non-pregnant,

non-disabled children ages 18 to 20 as a condition of participation

in the program, but it permitted states to do so at the state's

option.   See 42 U.S.C. § 1396d(a)(i).   States which chose to do so

were required to provide the same mandatory benefits to children

aged 18 to 20 as they provided for other children.

           From 1991 to the present, Maine's Medicaid program,

MaineCare, has provided Medicaid coverage to low-income individuals

aged 18 to 20.      Although considered "children" for Medicaid

purposes, such individuals are otherwise considered "adults" under

Maine law.   See Me. Rev. Stat. tit. 1, §§ 72(1), 73.     MaineCare

makes up a major portion of Maine's annual outlays, accounting for

just over one-third of the state's total budget in 2013.3


     3
          Maine's total state and federal Medicaid expenditures for
fiscal year 2012 were $2.4 billion. According to Attorney General
Mills, coverage for 19- and 20-year-olds (the group for which Maine

                                -6-
            In    2009,    as   part    of    the    American      Recovery     and

Reinvestment Act (ARRA), Pub. L. No. 111-5, 123 Stat. 115 (2009),

Congress offered stimulus funds to states which agreed to maintain

their Medicaid eligibility criteria at July 1, 2008 levels until

December 31, 2010.        Id. § 5001(f)(1)(A), (h)(3), 123 Stat. at 500,

502.   Two of the purposes of the ARRA were to "preserve and create

jobs and promote economic recovery" and to "stabilize State and

local government budgets, in order to minimize and avoid reductions

in essential services and counterproductive state and local tax

increases." Id. § 3(a), 123 Stat. at 115–16. Maine accepted those

funds and the concordant conditions, which included continuing to

provide coverage to low-income 18- to 20-year-olds until December

31, 2010.

            The   ACA,     enacted     on    March   23,   2010,     contains    a

"maintenance-of-effort" (MOE) provision, now codified at 42 U.S.C.

§ 1396a(gg), which provides, in relevant part, that states, in

order to continue receiving Medicaid funds,

            shall   not   have   in   effect   eligibility
            standards, methodologies, or procedures . . .
            that are more restrictive than the eligibility
            standards,   methodologies,   or   procedures,
            respectively . . . that [as of March 23, 2010]
            are applicable to determining the eligibility
            for medical assistance of any child who is
            under 19 years of age (or such higher age as
            the State may have elected).



sought to repeal coverage) represented less than two percent of
that figure.

                                       -7-
Maine had elected to cover 18- to 20-year-olds. The requirement of

the MOE provision is in effect until October 1, 2019.               42 U.S.C.

§ 1396a(gg)(2). In other words, beginning March 23, 2010, in order

to continue receiving those Medicaid funds they had received for

this population, states were required to "freeze" their eligibility

standards for children for a period of approximately nine years.

Those "standards" included Maine's provision of coverage for 18- to

20-year-olds.

            In short, in 2009, Maine agreed to continue providing

coverage, as it had since 1991, for low-income individuals aged 18

to 20 through 2010 as a condition of receiving federal stimulus

funds under the ARRA.          The ACA in 2010 then required Maine to

continue    doing   so   for   another   nine   years   as   a   condition   of

receiving Medicaid funds.        Maine DHHS complains that it did not

have an opportunity to restrict its eligibility standards for

children after it accepted funds under the ARRA but before the ACA

went into effect.

            Maine is required by its state constitution to have a

balanced budget.     See Me. Const. art. 5, pt. 3d, § 5; id. art. 9,

§ 14.      Faced with a budget deficit in 2012, Maine's governor

proposed eliminating MaineCare eligibility for 19- and 20-year-olds

not otherwise covered by Medicaid.         The legislature voted in favor

of that elimination of coverage, among other budget cuts.               Maine

DHHS projected that removing 19- and 20-year-olds from the program


                                     -8-
would save Maine $3.7 million but cause the state to lose $6.9

million in federal funds.

            In     August   2012,    Maine     DHHS    submitted    a   state    plan

amendment to the U.S. DHHS that eliminated coverage of 19- and 20-

year-olds, among other changes.            On January 7, 2013, CMS issued an

initial decision allowing most other cuts but declining to approve

Maine DHHS's amendment as to eliminating coverage for 19- and 20-

year-olds because it did not comply with § 1396a(gg). CMS rejected

Maine     DHHS's     arguments      that       the    MOE    provision     was    an

unconstitutional exercise of Congress's spending power under the

Supreme    Court's    decision      in   NFIB.        CMS,   on   reconsideration,

affirmed the disapproval of the state plan amendment, this time

simply stating that the proposed amendment was inconsistent with

the MOE provision and that the agency did not have the authority to

adjudicate the constitutional questions raised by Maine DHHS. This

petition for judicial review followed.

            Maine DHHS brings a twofold constitutional challenge to

the MOE provision before us.             First, it renews its argument that

the MOE provision is unconstitutional under the Spending Clause.

Second, it contends for the first time that the MOE provision

violates the doctrine of equal sovereignty as articulated in Shelby

County v. Holder, 133 S. Ct. 2612 (2013).

            We review these constitutional challenges de novo.                   See

5 U.S.C. § 706 (court reviewing agency action must "decide all


                                         -9-
relevant         questions    of   law"   and       "interpret   constitutional   and

statutory provisions," and shall "set aside agency action . . .

found       to   be   .   .   .   contrary    to     constitutional   right,   power,

privilege, or immunity"); see also United States v. Rene E., 583

F.3d 8, 11 (1st Cir. 2009) (review of constitutional challenge to

a federal statute is de novo).4


        4
          We asked the parties to provide supplemental briefing on
the issue of whether we have jurisdiction to address Maine DHHS's
constitutional claims, even though the agency did not address those
claims because it disclaimed the "authority to render decisions
regarding the constitutionality of congressional enactments."
     After reviewing the parties' arguments, we conclude that we
have jurisdiction. Under 42 U.S.C. § 1316(a), "[a]ny State which
is dissatisfied with a final determination made by the Secretary on
. . . reconsideration" regarding approval of the state's Medicaid
plan may "file with the United States court of appeals for the
circuit in which such State is located a petition for review of
such determination. . . . The court shall have jurisdiction to
affirm the action of the Secretary or to set it aside, in whole or
in part."    The Supreme Court has approved of the "appellate
court[s'] reviewing the decision of an administrative agency to
consider a constitutional challenge to a federal statute that the
agency concluded it lacked authority to decide." Elgin v. Dep't of
Treasury, 132 S. Ct. 2126, 2137-38 n.8 (2012) (collecting cases).
In Preseault v. ICC, 853 F.2d 145 (2d Cir. 1988), one of the cases
cited in the Elgin footnote, the court, in the course of reviewing
an agency's decision, held that it had jurisdiction over a
challenge to the constitutionality of the statute under which the
agency acted, even though the claim was presented for the first
time on appeal.   Preseault, 853 F.2d at 148–49.     The Preseault
court rejected the agency's argument that the petitioners'
constitutional challenge should be brought in federal district
court in the first instance, concluding that "it would be
nonsensical to require a bifurcated challenge, relegating the
constitutional challenge to the statute to a district court" that
did not have jurisdiction over the review of the underlying agency
proceeding. Id. at 149. We find Preseault's analysis persuasive.
Under § 1316(a), we have jurisdiction to review the U.S. DHHS's
disapproval of Maine DHHS's state plan amendment, and that
jurisdiction encompasses the power to adjudicate Maine DHHS's
constitutional challenges to § 1396a(gg).

                                             -10-
                      II.    Spending Clause Challenge

            "The Spending Clause grants Congress the power 'to pay

the Debts and provide for the . . . general Welfare of the United

States.'"    NFIB, 132 S. Ct. at 2601 (quoting U.S. Const. art. I,

§ 8, cl. 1).    Maine DHHS argues that application of § 1396a(gg) in

these circumstances exceeds Congress's power under the Spending

Clause for two reasons: (1) it is unconstitutionally coercive under

NFIB and (2) it violates the anti-retroactivity principle of

Pennhurst State School & Hospital v. Halderman, 451 U.S. 1, 17, 25

(1981).     NFIB itself shows that both of these contentions are

without     merit.      The       MOE    provision     is   analogous       to    past

modifications    of    Medicaid         that    NFIB   deemed    constitutionally

permissible.

A.          NFIB v. Sebelius and the Spending Clause

            In NFIB, the Supreme Court considered constitutional

challenges to two provisions of the ACA: to the individual mandate,

which required most Americans to maintain a minimum level of health

insurance    coverage,      and    to   the     significant     expansion    of   the

Medicaid program, which required states to provide specified health

care to all individuals with incomes below 133 percent of the

poverty level (but at a higher federal financial participation

rate) as a condition of the state's continued participation in

Medicaid.    132 S. Ct. at 2577, 2582.            In a fractured decision, the

Court upheld the individual mandate as a permissible exercise of


                                         -11-
Congress's taxing power, but found severable and struck down as

beyond       Congress's   Spending   Clause   authority   the   provision

penalizing states that did not participate in the new expansion of

the Medicaid funding with the loss of all Medicaid funding. Id. at

2608.       The Court struck down only the penalty for noncompliance,

not the expansion itself.       Id. at 2607.    That is, the Court held

that the U.S. DHHS could not condition the granting of all federal

Medicaid funds on a state's participation in the new expanded

program, but was permitted to condition funds for the new expanded

program on participation in the new program.        The Court made this

explicit:

              Nothing in our opinion precludes Congress from
              offering funds under the Affordable Care Act
              to expand the availability of health care, and
              requiring that States accepting such funds
              comply with the conditions on their use. What
              Congress is not free to do is to penalize
              States that choose not to participate in that
              new program by taking away their existing
              Medicaid funding.

Id.5



        5
          Maine has opted not to participate in the Medicaid
expansion. In June 2013, Maine's legislature passed a bill that
would have expanded the state's Medicaid program in order to
receive the additional federal funding offered under the ACA. LD
1066, 126th Leg., 1st Reg. Session (Me. 2013). Maine's governor
vetoed the bill, and the legislature failed to pass it over his
veto.   Id.; An Act to Increase Access to Health Coverage and
Qualify Maine for Federal Funding: Roll Call Vote #339, 126th Leg.,
1st Reg. Session (Me. 2013); The Advisory Board Company, Where the
States Stand on Medicaid Expansion, Daily Briefing (Sep. 4, 2014),
http://www.advisory.com/daily-briefing/resources/primers/medicaid
map.

                                     -12-
           Seven Justices concluded that the penalty of taking away

existing Medicaid funding from states which declined to sign up for

the new expanded Medicaid program was unconstitutional, but they

were unable to agree on a single or consistent rationale.             Chief

Justice Roberts, in a plurality opinion joined by Justice Breyer

and Justice Kagan, offered one rationale for that holding. A joint

dissent   authored   by   Justice   Scalia,   Justice    Kennedy,   Justice

Thomas, and Justice Alito offered another.

           1.   The plurality's approach

           The plurality began its analysis by noting that the

Medicaid expansion of the ACA "dramatically increase[d] state

obligations under Medicaid."         Id. at 2601.       Under the pre-ACA

system, states were required "to cover only certain discrete

categories of needy individuals -- pregnant women, children, needy

families, the blind, the elderly, and the disabled."          Id. (citing

42 U.S.C. § 1396a(a)(10)).      The Medicaid program expansion, "in

contrast, require[d] States to expand their Medicaid programs . . .

to cover all individuals under the age of 65 with incomes below 133

percent of the federal poverty line."           Id. (citing 42 U.S.C.

§ 1396a(a)(10)(A)(i)(VIII)).6




     6
          The Medicaid program expansion was projected to increase
federal Medicaid spending by $434 billion in its first six years.
Reply Br. of State Pet'rs on Medicaid at 19, Florida v. U.S. Dep't
of Health & Human Servs., 132 S. Ct. 2763 (2012) (No. 11-400), 2012
WL 864598 at *19.

                                    -13-
           The plurality reiterated the longstanding rule that

Congress may use its power under the Spending Clause to condition

federal grants to states "upon the States' 'taking certain actions

that Congress could not require them to take.'" Id. (quoting Coll.

Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S.

666, 686 (1999)).    But, in order for an exercise of the spending

power to be deemed legitimate, the state must "voluntarily and

knowingly" accept the terms of the deal.           Id. at 2602 (quoting

Pennhurst, 451 U.S. at 17). Put differently, "Congress may use its

spending power to create incentives for States to act in accordance

with federal policies," but it oversteps its authority "when

'pressure turns into compulsion.'" Id. (quoting Charles C. Steward

Mach. Co. v. Davis, 301 U.S. 548, 590 (1937)).                  This limit on

Congress's spending power is necessary to "ensur[e] that Spending

Clause legislation does not undermine the status of the States as

independent sovereigns in our federal system."            Id.

           The plurality opinion reasoned that, while Congress is

entitled   to   "condition   the   receipt   of   funds    on    the   States'

complying with restrictions on the use of those funds" in order to

"ensure[] that the funds are spent according to [Congress's] view

of the 'general Welfare,'" when Congress places conditions on funds

that do not govern the use of those funds, "the conditions are

properly viewed as a means of pressuring the States to accept

policy changes."    Id. at 2603–04.       The plurality determined that


                                   -14-
the latter situation obtained with respect to the Medicaid program

expansion.     That expansion, Chief Justice Roberts explained,

             accomplishe[d] a shift in kind, not merely
             degree. The original program was designed to
             cover medical services for four particular
             categories of the needy: the disabled, the
             blind, the elderly, and needy families with
             dependent children. . . . Previous amendments
             to Medicaid eligibility merely altered and
             expanded the boundaries of these categories.
             Under the [ACA], Medicaid . . . is no longer a
             program to care for the neediest among us, but
             rather an element of a comprehensive national
             plan to provide universal health insurance
             coverage.

Id. at 2605–06.     The plurality viewed the Medicaid expansion as

creating an entirely "new health care program," participation in

which was a condition of states receiving even continued funding

for an old program (pre-ACA Medicaid).       See id. at 2606.     This

meant that the Medicaid expansion was a condition upon the receipt

of funds that did not govern the use of those funds.

             The plurality next considered "whether 'the financial

inducement offered by Congress' [as to the new program expansion]

was 'so coercive as to pass the point at which    pressure turns into

compulsion.'"    Id. at 2604 (quoting South Dakota v. Dole, 483 U.S.

203, 211 (1987)) (internal quotation marks omitted). The precedent

for this portion of the analysis was the Court's decision in Dole.

Dole had considered whether Congress's threat to withhold five

percent of a state's federal highway funds if the state did not

raise its minimum drinking age to 21 was permissible under the


                                 -15-
Spending Clause.      Dole, 483 U.S. at 211.             Dole held that it was

permissible.      Id. at 211–12.       The NFIB plurality distinguished

Dole, saying while "the condition was not a restriction on how the

highway funds . . . were to be used," it was "not impermissibly

coercive, because Congress was offering only 'relatively mild

encouragement to the States.'"         NFIB, 132 S. Ct. at 2604 (quoting

Dole, 483 U.S. at 211).

            By contrast, the plurality found that the financial

inducement and penalty in the new Medicaid program expansion was

"much more than 'relatively mild encouragement' -- it [was] a gun

to   the   head."      Id.     Importantly,        the    plurality    expressly

acknowledged that Congress is permitted to modify the Medicaid

program, and to condition states' continuing participation in

Medicaid upon compliance with those modifications, as it has done

on numerous occasions in the past.          Id. at 2605.7

            The   plurality    found   that    the       new   Medicaid   program

expansion was much more than a simple modification -- it was a

"dramatic[]" "transform[ation]" of the program.                NFIB, 132 S. Ct.

at   2605–06.       States   could   not    have    anticipated       that   their



      7
          That was in accord with settled law, see California v.
United States, 104 F.3d 1086, 1092 (9th Cir. 1997); Stowell v.
Ives, 976 F.2d 65, 69 (1st Cir. 1992); Oklahoma v. Schweiker, 655
F.2d 401, 413–14 (D.C. Cir. 1981), and the NFIB Court did nothing
to unsettle that law. See also 42 C.F.R. § 430.12(c)(1) (state
plan "must provide that it will be amended whenever necessary to
reflect . . . [c]hanges in Federal law, regulations, policy
interpretations, or court decisions").

                                     -16-
entitlement to Medicaid funds would become conditioned on providing

new medical care to all individuals with incomes below 133 percent

of the poverty line. Id.       Thus, the new Medicaid program expansion

violated the "anti-retroactivity" rule of Pennhurst, which provides

that Congress may not "surpris[e]" states participating in a

federal-state       cooperative   program   "with   post-acceptance   or

'retroactive' conditions."        Id. (quoting Pennhurst, 451 U.S. at

25).

             2.    The joint dissent's approach

             The joint dissent's analysis of the constitutionality of

the Medicaid expansion differed significantly from that of the

plurality.        The primary8 focus of the joint dissent was on the

concept of "coercion," which it defined simply: "[I]f States really

have no choice other than to accept the package, the offer is

coercive, and the conditions cannot be sustained under the spending

power."      Id. at 2661 (Scalia, Kennedy, Thomas & Alito, JJ.,

dissenting).       The Justices cautioned, however, that "courts should

not conclude that legislation is unconstitutional on this ground

unless the coercive nature of an offer is unmistakably clear." Id.



       8
          The joint dissent also noted that conditions attached to
grants must be unambiguous, must be "related to the federal
interest in particular national projects or programs," and "may not
induce the States to engage in activities that would themselves be
unconstitutional."   NFIB, 132 S. Ct. at 2659 (Scalia, Kennedy,
Thomas & Alito, JJ., dissenting) (citations omitted) (internal
quotation   marks   omitted).      These   criteria   support   the
constitutionality of § 1396a(gg) here.

                                    -17-
at 2662.   Emphasizing that Medicaid constitutes the largest line

item in states' budgets,   as well as the apparent view of Congress

that no state would refuse to participate in the new Medicaid

program expansion, the joint dissent concluded that the expansion

exceeded Congress's power under the Spending Clause.        Id. at

2662–66.

B.         Application of NFIB to the Disapproval Here Based on
           § 1396a(gg)

           When a majority of the Supreme Court agrees on a result

but "no single rationale explaining the result enjoys the assent of

five Justices, 'the holding of the Court may be viewed as that

position taken by those Members who concurred in the judgments on

the narrowest grounds . . . .'"   Marks v. United States, 430 U.S.

188, 193 (1977) (quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15

(1976) (plurality opinion)).   In NFIB, the plurality invalidated

the Medicaid expansion on narrower grounds than did the joint

dissent.   The plurality found a Spending Clause violation because

it determined that the Medicaid program expansion was an entirely

new program, participation in which was a condition on continued

receipt of pre-ACA Medicaid funds, and because the loss of pre-ACA

Medicaid funds would have been so consequential to the states that

states had no real option to refuse. In other words, the plurality

found (1) that the expansion placed a condition on the receipt of

funds that did not govern the use of those funds and (2) that the

condition was unduly coercive.    The joint dissent, in contrast,

                               -18-
would have invalidated the expansion based on a finding of coercion

alone.    Hence, the plurality's rationale was narrower.                See E.

Pasachoff, Conditional Spending After NFIB v. Sebelius: The Example

of Federal Education Law, 62 Am. U. L. Rev. 577, 593-96 (2013); cf.

S. Bagenstos, The Anti-Leveraging Principle and the Spending Clause

After    NFIB,   101    Geo.   L.J.   861,   873    (2013)    (rejecting   the

proposition that the plurality's analysis relied only upon the size

of the grant at issue). Thus, we apply the plurality's approach to

§ 1396a(gg).

            Under   that    analysis,    Maine     DHHS's    Spending   Clause

challenge fails.       Indeed, the plurality opinion precludes us from

finding that there is a Spending Clause problem with § 1396a(gg).

The MOE provision applied to the long-standing provision of care to

19- and 20-year-olds, unlike the new Medicaid program expansion

first appearing in the ACA, is not a new program.             It is simply an

unexceptional "alter[ation] . . . [of] the boundaries" of the

categories of individuals covered under the old Medicaid program,

completely analogous to the many past alterations of the program

that NFIB expressly found to be constitutional.              See NFIB, 132 S.

Ct. at 2606.

            Section 1396a(gg) differs from the new program expansion

considered in NFIB in several critical ways. As an initial matter,

§ 1396a(gg) does not "expand" Medicaid eligibility at all.                  It

simply requires a state, as a condition of continued participation


                                      -19-
in Medicaid, to maintain its Medicaid eligibility standards for

"children" for nine years.     See 42 U.S.C. § 1396a(gg)(2) (MOE

provision applies to "the eligibility standards, methodologies, and

procedures . . . that are applicable to determining the eligibility

for medical assistance of any child who is under 19 years of age

(or such higher age as the State may have elected)").      As NFIB

noted, the Medicaid expansion "require[d] States to expand their

Medicaid programs by 2014 to cover all individuals under the age of

65 with incomes below 133 percent of the federal poverty line" and

"establishe[d] a new '[e]ssential health benefits' package."   132

S. Ct. at 2601 (citing 42 U.S.C. §§ 1396a(a)(10)(A)(i)(VIII),

1396a(k)(1), 1396u–7(b)(5), 18022(b)).

          What is more, § 1396a(gg) requires states to maintain

eligibility standards for a population -- low-income children of

certain ages -- that has historically been covered by Medicaid.

Maine DHHS admits in its argument that the classic form of Medicaid

provided coverage for the blind, the disabled, the elderly, and

needy families with dependent children.     In fact, the Medicaid

program has an extensive history of covering 18- to 20-year-olds.

At the time of Medicaid's enactment in 1965, the program included

some 19- and 20- year-olds within the population of children that

states had to cover.   It did so first by requiring states to match

the coverage of social assistance programs like Aid for Families

with Dependent Children ("AFDC"), which defined eligible children


                                -20-
to include 19- and 20-year-olds in particular educational programs.

See 42 U.S.C. § 606(a) (1964) (providing that AFDC was available to

any "dependent child," defined as "a needy child (1) who has been

deprived of parental support or care . . . and who is living with

[one of several enumerated relatives] . . ., and (2) who is (A)

under the age of eighteen, or (B) under the age of twenty-one and

.   .   .   a   student   regularly   attending   [certain   educational

programs]"); Social Security Amendments of 1965, Pub. L. No. 89-97,

sec. 121(a), § 1902(a)(10), 79 Stat. 286, 344-45 (codified at 42

U.S.C. § 1396a(a)(10) (1969)) ("A state plan for medical assistance

must . . . provide for making medical assistance available to all

individuals receiving aid or assistance under State plans approved

under [AFDC] . . . .").

            The Medicaid program also mandated that states provide

medical assistance to all under-21 individuals who would have

qualified as "children" for AFDC but for their age, thus removing

the educational condition that limited the class of 19- and

20-year-olds covered under AFDC.       See id. §§ 1902(b), 79 Stat. at

348 (codified at 42 U.S.C. § 1396a(b) (1969)); see also id. § 1904,

79 Stat. at 351 (codified at 42 U.S.C. § 1396d(a)(i) (1969)).

Thus, from its early days, Medicaid contemplated mandatory coverage

of some 19- and 20-year-olds, due to their status in federal law as

"children" in need.       Such a mandatory coverage requirement was in

place when Maine joined Medicaid in 1966.         The mandate to cover


                                   -21-
children under 21 who would qualify for AFDC but for their age did

not become optional until more than a decade later.                See Omnibus

Budget Reconciliation Act of 1981, Pub. L. No. 97-35, § 2172(b)(1),

95 Stat. 357, 808 (1981) (codified at 42 U.S.C. § 1396d(a)(i)); id.

§ 2172(a), 95 Stat. at 808 (codified at 42 U.S.C. § 1396a(b)

(1983)).

            There is an additional relevant point.           The category of

children for which a state must provide coverage has remained

subject    to   expansion    throughout     the    history    of     Medicaid.

Alterations to the category of needy children occurred repeatedly

in the 1980s, with states being required to cover an expanding

group of children based on changing age and income requirements.

Importantly,    in   1990,   Congress   required    states    to    cover   all

18-year-olds who met certain income eligibility requirements,

irrespective    of   their    "dependent"    status.         Omnibus    Budget

Reconciliation Act of 1990, Pub. L. No. 101–508, § 4601(a)(2), 104

Stat. 1388, 1388-166 (1990) (codified at 42 U.S.C. § 1396d(n)(2));

id. § 4601(a)(1)(A), 104 Stat. at 1388-166 (codified at 42 U.S.C.

§ 1396a(a)(10)(A)(i)(VII)).        In this way, children aged 18 --

historically treated by AFDC and Medicaid in the same manner as

children under 21 -- thus became included in the mandatorily

covered category without any condition other than their income

level.     That is so even though 18-year-olds are for many other

purposes, including voting, treated as adults rather than children.


                                   -22-
                 The history of Medicaid's treatment of 18-, 19-, and

20-year-olds further demonstrates that application of § 1396a(gg)

here as to the treatment of 19- and 20-year-olds "accomplishes a

shift in . . . degree," rather than in kind.                     NFIB, 132 S. Ct. at

2605; see also id. at 2606 (noting that a Medicaid "amendment

requiring States to cover pregnant women and increasing the number

of eligible children . . . . can hardly be described as a major

change      in    a   program   that    --    from    its   inception   --    provided

healthcare        for   'families      with    dependent     children'"      (emphasis

added)).9

                 Two further differences between the MOE provision and the

new Medicaid program expansion considered in NFIB support the

conclusion that the MOE provision did not accomplish a shift "in

kind." First, the MOE provision uses the same pre-existing funding

mechanism as pre-ACA Medicaid, whereas the expansion uses a new,

more       generous     federal     funding         mechanism.       Second,    under

§ 1396a(gg), Maine is required only to maintain its current

benefits for 19- and 20-year olds, whereas the Medicaid expansion

required states to provide a "new '[e]ssential health benefits'

package . . . to all new Medicaid recipients."                   NFIB, 132 S. Ct. at

2601 (first alteration in original). The NFIB Court explicitly

mentioned both of these features of the expansion in its analysis.


       9
          The pregnancy program was not directly at issue in NFIB,
but this language strongly suggests that the plurality viewed it as
a permissible alteration of the old program.

                                             -23-
It noted that "the manner in which the expansion [was] structured

indicate[d] that . . . Congress . . . recognized it was enlisting

the States in a new health care program" because "Congress created

a separate funding provision to cover the costs of providing

services to any person made newly eligible by the expansion" and

because "Congress mandated that newly eligible persons receive a

level of coverage that is less comprehensive than the traditional

Medicaid benefit package."   Id. at 2606.

          In short, the MOE provision as applied here does not

create a new program and falls comfortably within Congress's

express reservation of power to "alter" or "amend" the terms of the

Medicaid statute in its coverage of previously covered groups. See

Cong. Research Serv., Selected Issues Related to the Effect of NFIB

v. Sebelius on the Medicaid Expansion Requirements in Section 2001

of the Affordable Care Act 5-6 (July 16, 2012), available at

http://www.ncsl.org/documents/health/aca_medicaid_expansion_memo_

1.pdf (concluding that the MOE provision of the ACA remains valid

after NFIB because it is not "part of the 'new Medicaid expansion

program' for which the states must have a 'genuine choice'").

Further, the states had notice at the inception of the Medicaid

program that continued participation by a state in Medicaid might

be conditioned on a requirement such as the MOE provision here.

          As a result, there is no Spending Clause violation under

NFIB.   See also California v. United States, 104 F.3d 1086, 1092


                               -24-
(9th Cir. 1997) (rejecting California's argument that Congress

cannot   introduce    new    conditions        on    participation    in   Medicaid

because California "now has no choice but to remain in the program

in order to prevent a collapse of its medical system"); Stowell v.

Ives, 976 F.2d 65, 69 (1st Cir. 1992) (finding that statute

providing that U.S. DHHS would not approve a state plan for medical

assistance if the state reduced payment levels for the AFDC program

provided "incentives -- not commands -- to the States," since

states could choose to maintain AFDC benefits or to reduce them and

risk losing federal funding).           Rather, this is one of the "typical

case[s]"    in    which    "we   look   to     the    States   to    defend   their

prerogatives by adopting 'the simple expedient of not yielding' to

federal blandishments when they do not want to embrace the federal

policies as their own."            NFIB, 132 S. Ct. at 2603 (quoting

Massachusetts v. Mellon, 262 U.S. 447, 482 (1923)).

            Maine DHHS's arguments to the contrary are unconvincing.

First, Maine DHHS argues that the MOE provisions are an "integral

part" of the Medicaid expansion that was considered in NFIB, and so

they must be struck down "as a direct implementation of the ruling

in NFIB."        Not so.     The plurality focused exclusively on the

amendments to Medicaid that required states "to meet the health

care needs of the entire nonelderly population with income below

133 percent of the poverty level."             NFIB, 132 S. Ct. at 2606.        The

Court did not hold, or even intimate, that other changes to


                                        -25-
Medicaid wrought by the ACA, such as the MOE provision at issue

here, were constitutionally infirm. To the contrary, the plurality

expressly stated that it was holding unconstitutional only the

sanction of withholding all Medicaid funding from states that

refused to accept this "basic change in the nature of Medicaid."

Id. at 2608.   "That remedy d[id] not require striking down other

portions of the Affordable Care Act."   Id.

          Second, Maine DHHS contends that, regardless of its

earlier choice to provide coverage for low-income 19- and 20-year-

olds, Congress had not previously mandated this coverage, so the

now-mandated MOE coverage is "new."        It argues that "Congress

cannot threaten to withdraw all Medicaid funds from a State for

failing or refusing to cover categories of adults for whom Medicaid

has never previously mandated coverage," regardless of the fact the

state had chosen to provide such coverage.     In fact, Congress can

do so and it has done so, on numerous occasions.      Moreover, the

NFIB plurality expressly said Congress is allowed to do so, so long

as the change effected by the expansion is a shift in degree rather

than a shift in kind.   See id. at 2605.    NFIB approved of a past

amendment that newly required states to cover pregnant women; that

was a shift in degree and not in kind, as is this.   Id. at 2605–06.

Further, application here of § 1396a(gg) concerns children, a

classic Medicaid program objective, not adults.




                               -26-
             Third, Maine DHHS argues that § 1396a(gg) is "coercive"

because "when a federal program is as large as Medicaid is . . .,

the State has no option but to participate."            That is not the test

NFIB has adopted.      Even were the question of tests open, Maine

DHHS's Spending Clause claim based upon "coercion" alone does not

work. As the Supreme Court noted long ago, an attempt to determine

when "inducement" to comply with a condition on the use of federal

funds crosses the line into "compulsion" would "plunge the law into

endless difficulties."        Davis, 301 U.S. at 590 (Cardozo, J.); see

also Oklahoma v. Schweiker, 655 F.2d 401, 413-14 (D.C. Cir. 1981)

("The courts are not suited to evaluating whether the states are

faced . . . with an offer they cannot refuse or merely a hard

choice.").

             Maine   DHHS's    argument    that   the    MOE   provision   is

indistinguishable from the Medicaid expansion considered in NFIB

is, as explained, unpersuasive.            As it affects Maine, the MOE

provision requires Maine to do no more than continue to cover

low-income individuals aged 18 to 20 for a period of nine years,

and in exchange Maine will receive the classic funding.                    By

contrast, the new Medicaid program expansion would have required

Maine to cover all low-income individuals indefinitely.            NFIB, 132




                                    -27-
S.   Ct.    at    2606.    Those   changes   are   not   the   same   nor   even

analogous.10

C.            Claimed Pennhurst Anti-Retroactivity Violation

              Maine DHHS also argues that the application to it of the

MOE provision violates the Pennhurst anti-retroactivity principle

because Congress "changed the deal" it offered to Maine in 2009.

Maine DHHS points out that, in 2009, Maine was required to maintain

eligibility standards only through 2010 in order to get the

stimulus funds it had chosen to seek.              Then, in 2010, with the

passage of the ACA, Maine was required to maintain those standards

through 2019 in order to avoid losing all Medicaid funds.

              This retroactivity argument fails.          In Pennhurst, the

Supreme Court explained that "legislation enacted pursuant to the

spending power is much in the nature of a contract: in return for

federal funds, the States agree to comply with federally imposed

conditions."        451 U.S. at 17.   But a state cannot "voluntarily and

knowingly accept[] the terms of the 'contract'" if it "is unaware

of the conditions or is unable to ascertain what is expected of

it."    Id.      Thus, "if Congress intends to impose a condition on the



       10
           In briefing and at oral argument, counsel for Maine DHHS
argued that, because "the NFIB Court did not sever the application
of the Medicaid expansion only to those 21 and above," the decision
means that Congress may not make coverage of 19- and 20-year-olds
mandatory.    We see no basis to so conclude.      The question of
whether to sever application of the expansion to 18- to 20-year-
olds from application of the expansion to 21- to 64-year-olds was
not before the Court in NFIB.

                                      -28-
grant of federal moneys, it must do so unambiguously"; it may not

"surpris[e]     participating    States   with   post   acceptance    or

'retroactive' conditions."      Id. at 17, 25.

             The ACA did not "surprise" Maine with a retroactive

condition.    Because Congress has reserved in the Medicaid Act the

power to "alter" or "amend" the Medicaid program, states have had

fair notice that Congress may make incremental changes such as

"increasing the number of eligible children."      NFIB, 132 S. Ct. at

2606.11 Here, Congress did not even go that far; instead, it merely

required that states continue providing coverage to children on the

same terms as were in effect on the date of the ACA's passage.

Maine DHHS appears to argue that it could not have foreseen that in

exchange for stimulus funds it would be locked into those coverage

levels at a later time.    But this modest change falls within the

Medicaid Act's broad reservation clause. Maine was on notice, both

before and after accepting stimulus funds, that an incremental

alteration of Medicaid might change the conditions on participation

in the Medicaid program in the way that § 1396a(gg) has.             Put

differently, Maine was not "unaware of the conditions [on its

participation in Medicaid] or . . . unable to ascertain what [was]

expected of it," Pennhurst, 451 U.S. at 17, when it chose to


     11
          As explained in greater detail above, at the inception of
the Medicaid program, states were required to cover individuals
aged 18 to 20 if they would have qualified for the AFDC program but
for their age, and Congress at one point expanded Medicaid to cover
18-year-olds regardless of their status as "dependents."

                                  -29-
receive funds under Medicaid or under the ARRA.                  There is no

constitutional infirmity here.

                       III.    Equal Sovereignty Claim

               Maine DHHS also argues that the MOE provision deprives

Maine of its right to equal sovereignty under Shelby County v.

Holder, 133 S. Ct. 2612 (2013), because it "prohibit[s] Maine from

exercising the prerogative to design its Medicaid laws in ways that

many of its sister States remain free to do."             This argument fails

at every step of the analysis.          First, Maine DHHS's premise that

§ 1396a(gg) singles out certain states for disparate treatment is

wrong. Shelby County is also not relevant here because § 1396a(gg)

does not similarly effect a federal intrusion into a sensitive area

of    state     or   local     policymaking.     Finally,       there     is   no

constitutional problem because any disparate treatment caused by

§ 1396a(gg) is sufficiently related to the problem that the statute

was designed to address.

A.             Shelby County

               Shelby County considered the continuing constitutionality

of §§ 4 and 5 of the Voting Rights Act (VRA) of 1965.               Section 4

set forth a "coverage formula" that identified jurisdictions with

a    history    of   voter    discrimination,   and   §    5   required    those

jurisdictions to obtain "preclearance" for any change in voting

procedures by "proving that the change had neither 'the purpose

[nor] the effect of denying or abridging the right to vote on


                                      -30-
account    of   race   or    color.'"     Id.    at    2618–20   (alteration   in

original).       In    the   years    after    the    VRA's   passage,   Congress

repeatedly re-authorized the Act (most recently in 2006), but it

made no changes to § 4's coverage formula after 1975.                     Id. at

2620–21.

            The Shelby County Court held that § 4's coverage formula

unconstitutionally infringed the equal sovereignty of the states.

Id. at 2623–31.         The majority explained that, when a statute

"authorizes federal intrusion into sensitive areas of state and

local policymaking, . . . and represents an extraordinary departure

from the traditional course of relations between the States and the

Federal Government," id. at 2624 (citations omitted) (internal

quotation marks omitted), "any 'disparate geographic coverage' must

be 'sufficiently related to the problem that it targets.'"                 Id. at

2627 (quoting Nw. Austin Mun. Util. Dist. No. One v. Holder, 557

U.S. 193, 203 (2009)).12             The Court found that § 4's coverage


     12
          Shelby County relied primarily on two cases for its
discussion of the equal sovereignty doctrine: Coyle v. Smith, 221
U.S. 559 (1911), and Northwest Austin. Coyle held that

            when a new state is admitted into the Union,
            it is so admitted with all of the powers of
            sovereignty and jurisdiction which pertain to
            the original states, and that such powers may
            not be constitutionally diminished, impaired,
            or shorn away by any conditions, compacts, or
            stipulations embraced in the act under which
            the new state came into the Union, which would
            not be valid and effectual if the subject of
            congressional legislation after admission.


                                        -31-
formula as used in Shelby County did not satisfy this test because

it was "based on decades-old data and eradicated practices."            Id.

at 2627.

B.         Disparate Treatment

           Maine   DHHS's   premise    that   §   1396a(gg)   results    in

"disparate treatment" of states, as that phrase was used in Shelby

County, is mistaken.    On its face, the MOE provision applies the

same rule to each state: freeze eligibility standards in existence

as of March 23, 2010 until October 1, 2019, or risk losing Medicaid

funding.    In Shelby County, the government admitted that the

coverage formula was "'reverse-engineered': Congress identified the

jurisdictions to be covered and then came up with criteria to

describe them."    Id. at 2628.       In contrast, Maine has not been

"singled out" at all.        The rule is uniform and performs an

important function of not providing incentives to states to act in

ways Congress wishes to avoid.    See, e.g., Bennett v. Ky. Dep't of

Educ., 470 U.S. 656, 671–72 (1985).       Every state has simply been




221 U.S. at 573. In other words, Congress can enact laws affecting
a state differently from other states at the time of its admission
only if Congress could constitutionally do so after the state's
admission. Northwest Austin expressed concerns in dicta that the
VRA might conflict with "our historic tradition that all the States
enjoy 'equal sovereignty.'" 557 U.S. at 203 (quoting United States
v. Louisiana, 363 U.S. 1, 16 (1960)).

                                  -32-
required to continue for a limited period of time13 to fund Medicaid

services for those children it was funding before the ACA.

              Maine DHHS resists this distinction, pointing out that

even the preclearance requirement in Shelby County, in a sense,

applied to all states. This contention is unpersuasive. In Shelby

County, the government expressly admitted that it had singled out

certain states for disfavored treatment and then reverse-engineered

a coverage formula that would target only those states. 133 S. Ct.

at 2628.      Here, in contrast, there is no suggestion that the MOE

provision was "reverse-engineered"; from all indications, Congress

came up with the criteria without regard to which states would be

covered by their application.

C.            Intrusion Into          a    Sensitive     Area   of    State or Local
              Policymaking

              We    reject    Maine       DHHS's   equal    sovereignty      claim   for

another reason as well.               Shelby County involved a situation of

federal "intrusion[s] into sensitive areas of state and local

policymaking," id. at 2624, and required in that context that

disparate treatment must be "sufficiently related to the problem

that it targets," id. at 2627.                 The Court repeatedly emphasized

that    the   VRA    marked    an     "extraordinary"        departure    from    basic

principles     of     federalism       because      it     intruded   into    a   realm

(regulation of state and local elections) that has traditionally


       13
          Section 1396a(gg) will remain in effect only until 2019.
See 42 U.S.C. § 1396a(gg)(2).

                                            -33-
been     the       exclusive       province      of       the       states.14       Id.     at     2618

(characterizing § 5 as a "drastic departure from basic principles

of federalism"); id. at 2623 (noting that the Framers "intended the

States       to    keep     for    themselves         .   .     .    the    power     to    regulate

elections"); id. at 2624 (stating that the VRA "'authorizes federal

intrusion into sensitive areas of state and local policymaking,'

.   .    .    and    represents          an    'extraordinary              departure        from    the

traditional course of relations between the States and the Federal

Government'");             id.    at    2630     (explaining,              "[a]t    the     risk     of

repetition," that the VRA is "far from ordinary"); id. at 2631

(stating that any preclearance formula must reflect conditions that

"justify[] such an 'extraordinary departure from the traditional

course        of     relations         between       the        States       and      the    Federal

Government'").             The equal sovereignty doctrine has been applied

only in such extraordinary situations.                               See NCAA v. Governor of

N.J., 730 F.3d 208, 239 (3d Cir. 2013) ("[T]here is nothing in

Shelby County to indicate that the equal sovereignty principle is

meant        to    apply    with       the    same    force         outside     the    context      of

'sensitive areas of state and local policymaking.'" (quoting Shelby


        14
          Similarly, in Coyle v. Smith, the challenged federal
statute mandated that Oklahoma, as a condition of admittance to the
Union, establish its state capital in a particular city. See 221
U.S. 559, 564 (1911). The Court found that this statute violated
the equal sovereignty doctrine, noting that "[t]he power to locate
its own seat of government, and to determine when and how it shall
be changed from one place to another, and to appropriate its own
public funds for that purpose, are essentially and peculiarly state
powers." Id. at 565.

                                                -34-
County, 133 S. Ct. at 2624)).15    This is not such an extraordinary

situation.    Federal laws that have differing impacts on different

states are an unremarkable feature of, rather than an affront to,

our federal system.    Indeed, MOE provisions like the one at issue

here have long been a common feature of federal spending programs,

including Medicaid. See, e.g., Social Security Amendments of 1965,

Pub. L. No. 89-97, sec. 121(a), § 1902(c), 79 Stat. 286, 348

(codified at 42 U.S.C. § 1396a(c) (1969)) (MOE provision in the

original Medicaid statute); Bennett, 470 U.S. at 671 (describing

MOE provision in the Elementary and Secondary Education Act of

1965).

             The MOE provision at issue here does not intrude on an

area of traditional state concern; to the contrary, it simply

requires an extension of states' prior choices to participate in a

limited federal-state cooperative program.    Maine DHHS's assertion

that the MOE provision affects its "ability to pass and implement

laws, in the exercise of the fundamental police power over health

and welfare" is stated at much too high a level of generality to be


     15
          In NCAA, the Third Circuit rejected an equal sovereignty
challenge to a statute that, in effect, prohibits casino-operated
sports books outside of Nevada. The Third Circuit held that the
Commerce Clause, under which the challenged statute had been
enacted, "'does not require geographic uniformity.'" Id. at 238
(quoting Morgan v. Virginia, 328 U.S. 373, 388 (1946) (Frankfurter,
J., concurring)).
     We need not and do not hold that the equal sovereignty
doctrine is categorically inapplicable to congressional action
under the Spending Clause.         We simply find the doctrine
inapplicable on the facts of this case.

                                  -35-
true.   A state's ability to set the conditions of eligibility for

participation in a federal health insurance program that is funded

primarily by the federal government is not a core sovereign state

function in the same way as is a state's ability to regulate the

conduct of its elections.         Cf. NCAA, 730 F.3d at 237–39 (reasoning

that the equal sovereignty doctrine did not apply to a statute

affecting      a    state's    ability   to     pass    laws      legalizing    sports

gambling).

             Put     simply,    the   MOE     provision      is    not   at    all    an

"intrusion," much less an intrusion into state sovereignty as was

true of § 4 of the VRA.          The equal sovereignty doctrine of Shelby

County is not applicable to this case.

D.           Sufficient Justification

             Maine DHHS makes, and we reject, an argument that under

Shelby County the MOE provision is not sufficiently related to the

problem   it       targets.     Shelby    County       permits     legislation       that

"single[s] out" states if the singling out "makes sense in light of

current conditions."          133 S. Ct. at 2629.        The coverage formula of

§ 4 of the VRA failed that test because it was "based on decades-

old data and eradicated practices."                    Id.     at 2627.        Section

1396a(gg), in contrast, does "make[] sense in light of current

conditions," and so, to the extent that it results in disparate

treatment of states at all, the disparity is permissible.




                                         -36-
             Congress   has   long   used    temporary     MOE   provisions   in

Medicaid and other benefits programs for a specific, legitimate

purpose: to protect low-income individuals from losing public

assistance in times of transition between different statutory

schemes for delivering that assistance.16             The MOE provision at

issue here is no different.           As counsel for the United States

explained at oral argument, when Congress passed the ACA, it did

not   want   to   create   incentives       for   states   to    drop   children

previously covered "on the often mistaken premise that they will be

easily transitioned to new coverage," when "in fact, there are gaps

in enrollment, people lose better benefits packages, or Congress

may just not want to shift from an existing program to one that is

now funded through [new] federal dollars." And as amici point out,

Congress was entitled to consider that widespread withdrawal of

coverage for children could have a serious impact on the public

fisc, since children who have health insurance are more likely to

avoid serious (and expensive) long-term health problems that often

beset children who lack insurance. The MOE provision avoided these

potential negative consequences of the shift from the pre-ACA




      16
          For example, when Congress passed the Medicaid statute in
1965, it included a provision prohibiting the U.S. DHHS from
approving a state plan that would result in a reduction in aid or
assistance provided under any of the five assistance programs
related to Medicaid eligibility, such as AFDC. See Social Security
Amendments of 1965, Pub. L. No. 89-97, sec. 121(a), § 1902(c), 79
Stat. 286, 348 (codified at 42 U.S.C. § 1396a(c) (1969)).

                                     -37-
regime.      The coverage conditions here are based on "current

conditions" and address real problems.

          Thus, we reject Maine DHHS's argument that "the MOE

provisions     .   .   .   [are]       not   sufficiently    tailored    to    any

constitutional purpose."17          To the contrary, § 1396a(gg) directly

serves the legitimate purpose of ensuring that children do not lose

health insurance as the country transitions from the pre-ACA

Medicaid regime to the post-ACA Medicaid regime. This is a far cry

from the situation the Court confronted in Shelby County, where

Congress "reenacted a formula based on 40-year-old facts having no

logical relation to the present day."                 133 S. Ct. at 2629.      Any

disparity in treatment caused by the MOE provision is justified.

                                 IV.    Conclusion

          We       deny    the     petition     for     review   and    find    no

constitutional violation.          Costs are awarded against Maine DHHS.




     17
           Maine DHHS contends that, because "the MOE provisions
. . . form an integral part . . . of the Medicaid Expansion," "[i]t
is clear that the purpose of the MOE provisions is promotion of a
constitutional wrong: the mandatory Medicaid Expansion under ACA
§ 2001." But Maine DHHS's premise that the MOE provisions were an
"integral" part of the new Medicaid program expansion considered in
NFIB is pure speculation; as Maine DHHS admits, Congress did not,
and was not required to, make explicit findings as to the rationale
behind the MOE provision.        Moreover, even if Maine DHHS's
speculation were correct, it remains true that the independent
justification for the MOE provision offered by the United States --
preserving public assistance benefits for children in a time of
transition between different public assistance programs -- is
entirely valid.

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