Friday, June 29, 2012
In December, I stated that I thought the Court would be inclined to solidify the coercion doctrine but would be likely to uphold the Medicaid expansion. I am still parsing the way in which the Court performed this legal novelty, because, as I noted yesterday, even though there were seven votes holding the Medicaid expansion to be coercive, five votes upheld Congress's power to create the expansion but basically severed the remedy for noncompliance, thus effectively upholding the expansion while also expanding the coercion cause of action. Though I was surprised at which justices were willing to agree that Tenth Amendment limits exist on conditional spending (Breyer? Kagan?), I was not surprised that the Court expressed its federalism project through the vehicle of Medicaid's expansion.
Although this was the first time the Court has struck down federal spending legislation as coercive, the Court still has not given us a theory to understand how it will decide future coercion cases. The Court refused to define coercion beyond assessing the Medicaid expansion as being "beyond the line" where "persuasion becomes coercion." (p. 55) We do have two points of clarification, though. First, Florida's brief was clearly persuasive to the Chief Justice, because he bought the states' argument that too much money could be taken away if the states do not comply with the Medicaid expansion. This clarifies an aspect of South Dakota v. Dole's coercion dicta, which could be read to mean either that Congress has offered too much money or that Congress threatened to take away too much money. Here, the Court accepted that Congress can offer the money for the Medicaid expansion, but it took issue with the fact that the Medicaid Act gives HHS the power to take away all Medicaid funding. So, Congress can offer a lot, it just can't threaten to take it all away.
The second point of clarification is that the Court is willing to apply the Tenth Amendment as a limiting principle to conditional spending legislation under this newly solidified coercion doctrine based on the New York v. U.S. notion of "political accountability" (which I highlighted during oral arguments). But, the opinion relies on prior federalism opinions such as New York and Printz, which are heavy on dual sovereignty and light on cooperative federalism. Political accountability does not provide a framework for understanding how future coercion claims might play out.[more after the jump]
We can also see that the Court does read amicus briefs. (Because I co-authored an amicus brief supporting the Medicaid expansion, I read all of the opposing briefs on the issue, which I blogged about in January.) One of the most obvious influences on the Roberts opinion, aside from Florida's submission, is Professor Blumstein's amicus brief. Blumstein advocated that the expansion is a new program that he called "New Medicaid" or "Medicaid 2.0," which is reflected in the way the Roberts/Breyer/Kagan plurality evaluated the Medicaid expansion. This is a complete mischaracterization of the expansion, and a dangerous one. Medicaid is a federal program that sets a floor of requirements upon which states can build, and Congress decided that eligibility for Medicaid should be uniformly expanded rather than allowing states to continue to hew to outdated notions of the "deserving poor" (a change that was long overdue, which I wrote in Federalizing Medicaid). To characterize eligibility for the program as outside the scope of the federal government's control of the program is bizarre.
I want to get to the concurrence and dissent later. So, what is the upshot for now? Undoubtedly we will see future coercion cases, and not just in healthcare. While Medicaid is one of the oldest conditional spending programs, it is one of many. Other conditional spending programs include educational funding, transportation funding, environmental protection laws, and welfare laws, just to name a few. The irony is that policing the federal-state relationship through coercion could actually lead to more pure federal programs and fewer cooperative federalism programs, thereby expanding federal uses of power and removing states from the policymaking. So, not only are the courthouse doors open to all forms of cooperative federalism that may be “coercive,” but also the federal government could either drop programs or take them over, either way cutting states out of the equation.
[NH - cross posted at concurring opinions]