Five states have filed a complaint directly to the Supreme Court against the Department of Health and Human Services regarding the “clawback” payment in the Medicare “Part D” program, which requires states to pay a portion of Medicare costs and includes a penalty if the states do not pay. The complaint for Texas, Kentucky, Maine, Missouri, and New Jersey presents three questions:
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1. Is the “clawback,” an unconstitutional tax against the States in their sovereign capacities?
2. Does the clawback impermissibly commandeer state legislatures to fund the federal Medicare program?
3. Does the clawback violate the Constitution’s Guarantee Clause by improperly usurping control of essential functions of state government?
Ten states have filed an amici brief.