JUSTICE KAGAN: The exact same argument. So that really reduces to the question of why is a big gift from the Federal government a matter of coercion? In other words, the Federal government is here saying, we are giving you a boatload of money. There are no -there's no matching funds requirement, there are no extraneous conditions attached to it, it's just a boatload of Federal money for you to take and spend on poor people's healthcare. It doesn't sound coercive to me, I have to tell you.
MR. CLEMENT: Well, Justice Kagan, let me —I mean, I eventually want to make a point where even if you had a stand alone program that just gave 100 percent, again 100 percent boatload, nothing but boat load — well, there would still be a problem.
JUSTICE KAGAN: And you do make that argument in your brief, just a stand alone program, a boatload of money, no extraneous conditions, no matching funds, is coercive?
MR. CLEMENT: It is. But before I make that point, can I simply say you built into your question the idea that there are no conditions. And of course, when you first asked it was what about the same program with 100 percent matching on the newly eligible mandatory individuals, which is how the statute refers to them. And that would have a very big condition. And the very big condition is that the States in order to get that new money, they would have to agree not only to the new conditions but the government here is — the Congress is leveraging their entire prior participation in the program -
JUSTICE KAGAN: Well, let me give you a hypothetical, Mr. Clement.
MR. CLEMENT: Sure.
JUSTICE KAGAN: Now, suppose I'm an employer and I see somebody I really like and I want to hire that person. And I say Im going to give you $10 million a year to come work for me. And the person says well, I — you know, I've never been offered anywhere approaching $10 million a year, of course I'm going to say yes to that. Now we would both be agreed that that's not coercive, right.
MR. CLEMENT: Well, I guess I would want to know where the money came from. And if the money came from -
JUSTICE KAGAN: Wow, wow. I'm offering you $10 million a year to come work for me and you are saying this is anything but a great choice?
MR. CLEMENT: Sure, if I told you actually it came from my own bank account. And that's what's really going on here in part. And that's why it's not
JUSTICE KAGAN: But, Mr. Clement — Mr. Clement, can that possibly be.