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Supreme Court Justice Anthony Kennedy (Photo: Chip Somodevilla/Getty Images)

The next Supreme Court justice could usher in significant changes to Medicaid, giving states far more power to cut the program.

The issue: Many conservative lawyers and judges say private entities — like health care providers — shouldn't be able to sue over Medicaid's coverage decision. If that view ultimately prevails, states could make much bigger cuts without the threat of a lawsuit.

"A right without a remedy is not a right.”
— Rodney Whitlock, health care lobbyist

Where it stands: The Supreme Court ruled in 1990, in Wilder v. Virginia Hospital Association, that providers can sue over inadequate payment rates. Kennedy dissented from that ruling, and later helped to narrow its scope — but the court never fully closed the door on provider lawsuits.

  • Kennedy “was willing to leave the courthouse doors open in Medicaid cases, whereas the conservative majority is willing to shut it – I mean, really slam it," said Sara Rosenbaum, a George Washington University law professor.

The impact: Kennedy's replacement could be the fifth vote to shut providers out entirely.

  • Conservatives including Justice Clarence Thomas and the late Antonin Scalia, have argued that Medicaid is a contract between states and the federal government, and that the law doesn't give individuals the right to sue for the entitlements the statute requires. Only HHS should decide whether a state is out of line, they've said.
  • If the right to sue goes away, “it's certainly possible that a state would start hacking away at its program. There would be no deterrence at all," Rosenbaum said.

What we're watching: This issue could find its way back to the court relatively soon. Kansas and Lousiana have asked the Supreme Court to hear cases regarding about whether they can exclude Planned Parenthood from their Medicaid programs, and whether Planned Parenthood can sue over that exclusion.

  • Two federal appeals courts said the states couldn't exclude Planned Parenthood. But a third appeals court ruled that Planned Parenthood doesn't have the right to sue Arkansas over the same issue.

Go deeper

2 hours ago - World

Coast Guard searches for 39 people after boat capsizes off Florida coast

A U.S. Coast Guard ship leaving its base in Miami Beach, Florida, in July. Photo: AP/Marta Lavandier

U.S. Coast Guard crews were searching into the night for 39 people whose boat sank off Florida's coast over the weekend after traveling from the Bahamas.

The big picture: A "good Samaritan" contacted the Coast Guard about 8 a.m. Tuesday to say they "rescued a man clinging to a capsized vessel" 45 miles east of Fort Pierce, per a tweet from the agency, which noted it was dealing with "a suspected human smuggling venture."

Scoop: Race to lead NRCC kicks off

Reps. Darin LaHood (left) and Richard Hudson. Photos: Al Drago/Getty Images (LaHood) and Chip Somodevilla/Getty Images

Reps. Richard Hudson (R-N.C.) and Darin LaHood (R-Ill.) are both telling colleagues they plan to run for chair of the National Republican Congressional Committee for the 2024 cycle, people familiar with the matter tell Axios.

Why it matters: Republicans are confident they'll win the House majority back this fall, and the early jockeying to lead the caucus' fundraising apparatus is just another indicator of their optimism.

Scoop: White House plans expedited resettlement for Afghan refugees

Afghan Special Immigrant Visa holders enter a processing center at Camp As Sayliyah, Qatar, last August. Photo: Sgt. Jimmie Baker/U.S. Army via Getty Images

President Biden's advisers are crafting a plan to accelerate bringing potentially thousands of Afghans to the U.S. from Qatar, according to a source with direct knowledge of the administration's internal deliberations on the subject.

Why it matters: As U.S. military leaders plan for a possible Russian invasion of Ukraine, the administration is still struggling to handle the aftereffects of its chaotic Afghanistan withdrawal. One challenge: how to care for tens of thousands of displaced Afghans — many of whom helped the U.S. fight its longest war.