Thursday, December 6, 2012
Emily J. Martin, Vice-President and General Counsel at the National Women's Law Center, published an American Constitution Society Issue Brief that argues that the Supreme Court's ruling last summer on the ACA's Medicaid expansion in Nat'l Fed. of Ind. Business v. Sebelius does not threaten Title IX.
Recall that the Court ruled in NFIB that Congress exceeded its authority in enacting the Medicaid expansion component of the ACA. The Medicaid expansion provision provided generous federal financial assistance for states that expanded their Medicaid programs to reach those up to 133% of the federal poverty level. Some states balked, arguing that this was way too heavy-handed, given the size of Medicaid and their reliance on it. In other words, states argued that Congress couldn't force them to choose between expanding their Medicaid programs and foregoing all federal Medicaid funding.
The Supreme Court agreed. Chief Justice Roberts wrote for a plurality that Medicaid expansion was a new program, not just an addition to the existing Medicaid program, and that the sheer size of Medicaid--and the threat of its entire loss--made the ACA's Medicaid expansion unduly coercive on the states. At the same time, the plurality wrote that Congress could condition receipt of incremental and additional Medicaid funds under the ACA on a state's expansion of Medicaid.
Some thought that this approach to Congress's spending power threatened other federal spending programs, in particular Title IX. Title IX prohibits public and private educational institutions that receive federal funds from discriminating on the basis of sex. Some suggested that under NFIB, Title IX, like Medicaid expansion, might be unduly coercive, because it might require an educational institution to forego all federal funding if it discriminates against women.
Martin says this is wrong. She writes that NFIB doesn't even apply Title IX and private educational institutions: NFIB's approach--and the Spending Clause approach generally--is concerned about coercion of states, not private actors. As to states, she argues that unlike the ACA's Medicaid expansion, Title IX operates to limit the termination of federal funds "to the particular program . . . in which . . . noncompliance has been so found." 20 U.S.C. Sec. 1682. In short, noncompliant state institutions wouldn't stand to lose their entire federal educational budget (as they could stand to lose their entire Medicaid budget under the ACA); instead, they'd lose only that portion tied to the sex discrimination.
Martin says that Title IX is protected from NFIB for another reason: Congress also had authority to enact Title IX under Section 5 of the Fourteenth Amendment. She argues that this belt on top of the Spending Clause's suspenders ensures that Title IX is well within congressional authority.