The original “Nebraska Compromise” (the Kansas-Nebraska Act) was an attempt to compromise a contentious national issue. At least arguably, the abortion spending restrictions in the Senate health care bill fits in this broad description, and like the KNA, the new abortion provision includes an element of state-based choice. However, another provision of the Senate bill is no compromise at all: the requirement that taxpayers in the other 49 states pay the full cost of the extra Medicaid spending that will be necessary in Nebraska because of the Senate bill. “Cornhusker kickback” is the more accurate term for this provision.
Is the Cornhusker kickback constitutional? A recent blog post by University of Montana law professor (and Independence Institute Senior Fellow) Rob Natelson explains the issue for laymen: It’s not an Equal Protection violation, because Equal Protection does not protect states from discrimination. It is a gross violation of the “(1) the General Welfare Clause (Article I, Section 8, Clause 1), designed to prevent taxation for regional or special interest expenditures and (2) the Necessary and Proper Clause (Article I, Section 8, Clause 18), whose ‘proper’ requirement probably was meant to assure that federal legislation met minimal fiduciary standards of fairness.” However, at Natelson notes, the Supreme Court has historically been timid about enforcing those provisions of the Constitution, and after 1937 gave up entirely.
But as I have argued elsewhere, the Constitution is more than merely what the Courts say it is. Even when Courts act as if a constitutional provision had never been written, the People can still act to protect constitutional provisions, through the political process, and through public debate. If the people do so in regards to the “Cornhusker kickback,” they will be acting faithfully to the original meaning of the Constitution. For the original meaning, see: Natelson, Judicial Review of Special Interest Spending: The General Welfare Clause and the Fiduciary Law of the Founders, 11 Tex. Rev. L. & Pol. 239 (2007). See also Natelson, The Agency Law Origins of the Necessary and Proper Clause, 55 Case W. Res. L. Rev. 243 (2004); The General Welfare Clause and the Public Trust: An Essay in Original Understanding, 52 U. Kan. L. Rev. 1 (2003).
Chris Travers says:
What about the argument that a blatant preference for one state in such a way might violate the concept of the states as equal sovereigns and thus might overstep Congress’s authority?
This was my reading of the Constitutional issue avoided in the Northeast Austin Municipal Utility District No. One v. Holder ruling. Is this entirely wrong?
December 23, 2009, 2:18 pmSteve says:
The legal issue is certainly interesting. But what’s with all the people acting like this is the first bill in the nation’s history to blatantly favor one state over others?
December 23, 2009, 2:21 pmDoc Merlin says:
Slightly off topic, but the post where it is, has comments blocked. The point of the healthcarebill isn’t to provide healthcare. It is to make healthcare much, much more expensive, to eventually force the issue.
December 23, 2009, 2:22 pmjpe says:
In Northease Austin, the question was whether the Feds could intrude on voting, which is historically a state issue. The ability of the federal government to spend federal funds raises no such issue.
December 23, 2009, 2:22 pmSoronel Haetir says:
Even if the courts were to step in and invalidate these funds all that would mean is that Nebraska didn’t get what was promised. It’s not like the entire bill would be undone by such a move, it would already be law and I just don’t see it being repealed if passed.
December 23, 2009, 2:47 pmJust Dropping By says:
It is a gross violation of the “(1) the General Welfare Clause (Article I, Section 8, Clause 1), designed to prevent taxation for regional or special interest expenditures
I don’t see how that can even be a straight-faced interpretation of the language given that Congress began implementing fairly explicit “regional or special interest expenditures” pretty much immediately after the Constitution’s ratification and it’s all but logically impossible to implement any sort of spending plan in a way that doesn’t result in such expenditures. Even if expenditures were allocated on a strict per capita basis, that would still disproportionately benefit regions with higher population density.
December 23, 2009, 2:49 pmThorley Winston says:
Yeah it’s a pity that even though he’s one of the more prolific conspirators when it comes to posting on health care reform related topics he doesn’t allow comments. Had he done so I might have pointed out that under the original proposal (I don’t know if it will be in the final version), his “private plan” would be required to cover the same benefits as the “public option” much like the way States require non-ERISA plans to carry whatever benefits pressure groups at the legislature lobby to get mandated. While the “public option” is presumably dead (for now), there was talk of still using the “exchanges” to require “private plans” to start covering the same benefits (and even talk about eliminating the ERISA preemption which would allow the States to do the same).
So basically not only could Lindgren lose the HSA or FSA under ObamaCare, he’ll likely see the benefits in his plan changed within the next five years as the feds impose new mandated benefits that will (a) cause his premiums to increase even more, (b) cause his employer to drop some of his existing benefits or (c) both.
December 23, 2009, 2:53 pmJK says:
Despite distinguishing the abortion compromise, your argument still seems to include the claim that there are constitutional bars to raw political deals. I’d need a lot of convincing to believe that the framers intended to create constitutional barriers to raw political deal making even in cases where those deals are distasteful or contain clearly undesirable elements.
Looking to phases like “for the general welfare” or “necessary and proper” to be bars on political deal making is really just an exercise in getting the constitution to say whatever you want. It doesn’t seem much different than saying, for example, that “for the general welfare” means that courts should apply cost benefit analysis to all congressional spending. Neither are crazy from a grammatical standpoint, but nor does either make a lick of sense in the context of the history of the constitution.
Do I even need to mention the fact that such a constitutional limitation would probably render about half the acts of congress unconstitutional?
December 23, 2009, 3:11 pmbailey says:
What part of Obama’s response to Joe the Plumber’s question didn’t Lindgren understand? He makes a good living. Now, he gets to pay more to get less.
December 23, 2009, 3:29 pmShelbyC says:
Can you name one that did it quite as blatantly? Maybe there is one, but I don’t know about it.
December 23, 2009, 3:56 pmSteve says:
Can you name one that did it quite as blatantly? Maybe there is one, but I don’t know about it.
I would be shocked if every single appropriations bill for the last decade or two didn’t fall into this category.
December 23, 2009, 3:59 pmDilan Esper says:
I’m reminded of Justice Scalia’s otherwise risible concurrence in Herrera v. Collins, which nonetheless makes the quite correct point that “Our Perfect Constution” doesn’t address every ill.
Nothing in the Constitution says that Congress has to divy up benefits and perks to states on any sort of an equal or proportionate basis. Indeed, such a constitutional requirement would be totally unworkable and would invalidate lots of legislation and prevent necessary legislative compromise.
What I don’t understand is why everything that is allegedly wrong with the health care bill has to be a constitutional violation. Why can’t you simply argue that this is bad policy?
December 23, 2009, 4:08 pmShelbyC says:
Where state X is exempt from a cost that everybody else has to pay, with no rational basis? I’d be shocked if that were true, but hey, I’m often shocked.
Not that, “we do it all the time” makes it OK, though.
December 23, 2009, 4:16 pmJK says:
Huh, I, like Steve, would be shocked the other way;, but while I would be interesting to find out the answer, I’m not interesting enough to actually do the research.
December 23, 2009, 4:27 pmBored Lawyer says:
Let me understand the position of the naysayers.
If Congress passed a law providing that everyone in Nebraska was exempt from the income tax, would that be constitutional?
December 23, 2009, 4:48 pmSeaDrive says:
The Constitution itself was formed by similar politics e.g. the invention of the Senate to mollify small states and the 3/5 rule on slave headcount.
December 23, 2009, 4:56 pmSteve says:
Where state X is exempt from a cost that everybody else has to pay, with no rational basis? I’d be shocked if that were true, but hey, I’m often shocked.
It kind of sounds like you want to play definitional games here. It’s routine for bills to include provisions that benefit only one state or locality, but pay for it with everyone’s taxes.
I don’t get the argument that would lead us to conclude that Congress cannot say “Nebraska, you get free Medicaid!” but can say “Nebraska, you get a free chinchilla research center!”
December 23, 2009, 5:00 pmPaulB says:
Comparing the deal cut in the health care bill regarding Nebraska to the Kansas-Nebraska Act is nonsense. Nothing about Kansas-Nebraska was compromise, nor was it a bill whose details were forgotten in a few months as will be the case for the health care bill.
Instead, Senator Steven Douglas who four years earlier had saved the country from possible disunion with his leadership on the Compromise of 1850 pushed through a bill that repealed the Missouri Compromise’s delineation of 36 degrees 30 minutes for slave versus free territories, making Kansas an open competition between slave and free state settlers. This act, which most historians believe was due to Douglas’ interest in a transcontinental railroad, more than any other led to the collapse of the Whig Party in the 1854 election and its replacement by the Republican Party, whose reason for existence was ending slavery in all territories and the eventual demise of slavery in the states as well. From this came the various acts (Bleeding Kansas, Leocompton, Fugitive Slave Act defiance, Preston Brooks attack on Charles Sumner, John Brown’s raid etc.) that led to Lincoln’s election and southern secession.
A more relevant antebellum comparison to the health care bill was the clause in the Compromise of 1850 in which the federal government assumed the debts of the Republic of Texas. Debt holders were able to deliver a couple of necessary votes needed to pass the bills that made up the Compromise. Had Douglas not chosen to reopen the sectional conflict in order to benefit his own financial interests and those of his supporters, the “pork” included in the 1850 law might be remembered today as an example of the petty deals sometimes needed to accomplish great things in American democracy.
December 23, 2009, 5:06 pmChris Travers says:
Dilan Esper:
This isn’t really just about spending though. It is about excepting Nebraska from legal obligations regarding payment for joint programs that the other 49 states continue to be required to fill. It is entirely possible to see this as something other than a spending issue.
For example, in an earmark spending provision which funds a specific project in a specific location (say, installing instrument landing equipment at the Wenatchee airport) is simply a spending issue.
Saying to 49 states that they have to pay for certain types of medical care in joint programs (like Medicaid) while the other does not has a regulatory component.
December 23, 2009, 5:22 pmDilan Esper says:
Chris:
Many, many laws treat the states unequally in various ways. (Indeed, there’s even a dispute as to what “unequal” means in this context– does it mean proportional funding to population? Does it allow different states to face different requirements based on need?)
For instance, I know there’s a debate over whether Section 5 of the Voting Rights Act is unconstitutional based on other issues, but nobody seriously thinks that it is unconstitutional merely because it applied only to certain states and municipalities, do they?
There are also all sorts of special laws concerning Hawaii and arising out of the fact that Hawaii was a monarchy before it entered the union. Nobody believe those laws are unconstitutional on that basis, do they?
Your argument, like the arguments above, amounts to “this is really unfair, therefore it’s unconstitutional”. But NOTHING in the Constitution requires that the federal government treat the states equally or proportionately, except in a few discreet areas such as direct taxes and congressional representation. And legislation to disproportionately assist or burden particular states has been a part of legislative compromise throughout the history of the Republic.
Again, get in the habit of saying certain things might be really bad, but they aren’t unconstitutional.
December 23, 2009, 5:55 pmConstitutionality of the “Nebraska Compromise” | Liberal Whoppers says:
[...] Constitutionality of the “Nebraska Compromise” Share this [...]
December 23, 2009, 6:19 pmOff Kilter says:
From a political science point of view, I’m not clear why–with EVERY Democratic vote (plus Lieberman) needed–EVERY Senator didn’t hold out for something like Nelson and Landrieu did?
December 23, 2009, 6:42 pmShelbyC says:
Well, purportedly the chinchilla research center would benefit everybody, and it has to be located somewhere. I don’t suppose you’re arguing that a federally funded mueseum only open to residents of Massachuessets raises no more issues then a federally funded mueseum that happens to be located in Boston?
December 23, 2009, 6:55 pmShelbyC says:
But those applied to all states. There’s nothing in the constitution at all that mentions states by name, let alone anything like “Nebraska gets 3 senators”.
December 23, 2009, 6:56 pmBC says:
I find myself in the distasteful position of agreeing with Dilan. Not everything contemptible is unconstitutional.
That said, if a posse of citizens were to take it upon themselves to tar and feather the involved politicians, I would cheerfully vote to acquit anybody who was prosecuted for the act.
December 23, 2009, 6:58 pmBC says:
Not every Democratic senator is an unprincipled pile of crap. Some of them are simply delusional, and honestly believe that Harry Reid’s bill is good for the country. It’s unnecessary to bribe those people.
December 23, 2009, 7:00 pmTweets that mention The Volokh Conspiracy » Blog Archive » Constitutionality of the “Nebraska Compromise” -- Topsy.com says:
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December 23, 2009, 7:00 pmMichelle Dulak Thomson says:
Dilan Esper,
For instance, I know there’s a debate over whether Section 5 of the Voting Rights Act is unconstitutional based on other issues, but nobody seriously thinks that it is unconstitutional merely because it applied only to certain states and municipalities, do they?
There are also all sorts of special laws concerning Hawaii and arising out of the fact that Hawaii was a monarchy before it entered the union. Nobody believe those laws are unconstitutional on that basis, do they?
But, see, you’re citing instances where there’s some rational basis for the disparate treatment (apart, obviously, from “We need Sen. X’s vote”). IANACL, and I agree with you that “really bad idea” doesn’t = “unconstitutional”; still, this is the sort of difference that I’ve seen taken seriously. No one anywhere is arguing that Nebraska’s exemption from Medicaid payments has anything to do with the special character of Nebraska, or the past crimes of Nebraska, or anything at all about Nebraska apart from the fact that one Senator from Nebraska needed something to take home before he voted in the right direction. There’s a difference in kind here.
December 23, 2009, 7:03 pmShelbyC says:
Dilan, IANAL, but I understand that in many (most?) circumstances 5A due process requires that the feds not make arbitrary distinctions among people/states, etc. without a rational basis. Is your position that there is a rational basis for treating Nebraska differently, that the circumstances under which Nebraska is being treated differently don’t require a rational basis, or something I am missing entirely?
December 23, 2009, 7:16 pmChris Travers says:
That isn’t my argument at all.
Basically the issue is this: legislation which treats one state differently must do so on the basis of some compelling interest. There may be an exception for earmarks, but for the moment I will suggest that one can make a plausible argument that earmarks of various types can be argued in some way to support compelling interests.
In other words, it might be argued that it isn’t fair that federal funding was made available to add an instrument landing system to Pangborne Memorial Airport, which serves a city of maybe 100k people and has one airline which offers three flights a day out. Certainly many people do argue that this is sufficiently disproportionate and therefore unconstitutional.
However such a project arguably fits within a couple of key compelling interests that Congress has. First, the airport serves international commercial air traffic (even though all flights are directly to/from Seattle, these are usually connecting flights to other airlines and other cities around the world), and therefore directly impacts interstate and international commercial air transport.
Similarly, just because a bridge in Alaska isn’t likely to be used doesn’t mean it would be possible to draw a line declaring it Unconstitutional while allowing funding for general interstate highway systems.
However, I would draw a difference between something like those sorts of earmarks which are, ostensibly parts of other federal mandates and the agreement at issue here. The agreement at issue here changes the legal relationship between one state only and the federal government for purposes of a major federal program while denying similar options to other states. This is structurally different than building bridges to nowhere or setting up expensive equipment at small airports, and it denies the states the right to equality before the federal government in their legal relationships.
It isn’t a matter merely of it being unfair, nor is it merely a matter of unfair spending. It is whether, absent a compelling interest, the federal government can place one state in a privileged LEGAL position relative to the other states. I just don’t see how it can.
December 23, 2009, 7:23 pmAriel says:
I also agree with Dilan that not everything that is bad is necessarily unconstitutional. I doubt that this is unconstitutional on these grounds, but it seems like there are plenty of other grounds to work with, like whether a mandate to buy something could be constitutional, whether regulating a wholly intrastate activity could be constitutional (though this might involve overruling Wickard v. Filburn and Raich), whether a tax that is clearly not on income could be constitutional… and those are just the top three off the top of my head.
December 23, 2009, 7:52 pmDilan Esper says:
But, see, you’re citing instances where there’s some rational basis for the disparate treatment (apart, obviously, from “We need Sen. X’s vote”). IANACL, and I agree with you that “really bad idea” doesn’t = “unconstitutional”; still, this is the sort of difference that I’ve seen taken seriously. No one anywhere is arguing that Nebraska’s exemption from Medicaid payments has anything to do with the special character of Nebraska, or the past crimes of Nebraska, or anything at all about Nebraska apart from the fact that one Senator from Nebraska needed something to take home before he voted in the right direction.
Ben Nelson would argue that there’s a rational basis, that Nebraska was going to be hit hard by the additional Medicaid expenditures.
As for the fact that other states are also going to be hit hard, doesn’t Williamson v. Lee Optical permit us to go one step at a time?
December 23, 2009, 8:34 pmDilan Esper says:
Basically the issue is this: legislation which treats one state differently must do so on the basis of some compelling interest.
So now not only do states have an unenumerated constitutional right to equal treatment, but it is a fundamental right subject to strict scrutiny???????
God, this is judicial activism on a scale that would make Harry Blackmun blush!
December 23, 2009, 8:35 pmChris Travers says:
I didn’t state a level of scrutiny. Certainly strict scrutiny would pose problems, for example regarding highway funding. For example, shipments from California to New York might go through Colorado. So certainly Congress has a compelling interest in helping fund Colorado’s highway needs. I would actually suggest a difference would need to meet rational basis review, and I don’t think it does in this case, because I don’t think buying votes itself is a compelling interest.
(No, I don’t think that highway funding is limited to the post roads provision.)
However, the legal relationship between the Fed. Government and Colorado in funding highways is not substantially different than the relationship between the Fed. Gov. and New York.
The legal relationship between the Fed. Gov. and Colorado under this compromise regarding Medicaid however is of a different kind than the relationship between the Fed. Gov. and Nebraska. Absent a compelling interest in treating them differently, the same general type of relationship should be available to other states.
(Now, if the federal government agreed to pay a small percentage more, I don’t think it would raise this issue but the difference in funding is sufficient to turn it into a different KIND of funding available only to Nebraska).
December 23, 2009, 8:45 pmMichelle Dulak Thomson says:
Dilan Esper,
Ben Nelson would argue that there’s a rational basis, that Nebraska was going to be hit hard by the additional Medicaid expenditures.
As for the fact that other states are also going to be hit hard, doesn’t Williamson v. Lee Optical permit us to go one step at a time?
Um, IANACL (again); I’m just a violist who has to leave soon for a pre-Christmas-Eve-service rehearsal.
But is it a general rule that you can extend a benefit to one of several similarly situated parties, and withhold it from the others, because you’re “permit[ted] to go one step at a time”? Who gets to choose which is the first step? And is there any necessity to prove that the benefit is a “step” (i.e., that other “steps” are going to follow), rather than a one-off?
If anyone is planning to let other states get what Nebraska is now promised, they’re keeping it awfully dark.
December 23, 2009, 8:48 pmShelbyC says:
I don’t think it permits us to do so if there is no rational basis for the steps. (The “one step at a time” involved first solving problems “that were most acute to the legislative mind”.) I don’t think, say, a rule requiring only optometrists with innies to get permits would have passed rational basis review. And there’s no evidence tha Congress could have felt that Nebraska was going to be hit harder than anyone else.
December 23, 2009, 9:41 pmMark Field says:
Sure. It’s not a direct tax, therefore it doesn’t need to be proportional.
December 23, 2009, 9:56 pmChris Travers says:
A better question would be if Congress passed a law that Nebraska and only Nebraska was exempt from minimum-drinking-age-related restrictions on highway funding.
December 23, 2009, 9:59 pmCornellian says:
” It is a gross violation of the “(1) the General Welfare Clause (Article I, Section 8, Clause 1), designed to prevent taxation for regional or special interest expenditures and (2) the Necessary and Proper Clause (Article I, Section 8, Clause 18), whose ‘proper’ requirement probably was meant to assure that federal legislation met minimal fiduciary standards of fairness.” ”
He thinks he’s “probably” right that there’s some “minimal fiduciary standards of fairness” hidden within the text of “proper”, whatever those standards might mean, and on that basis, it’s a “gross violation?”
Why doesn’t he just fess up that he’s found his very own penumbra?
December 23, 2009, 10:52 pmDilan Esper says:
Chris:
When you said there needed to be a compelling state interest, you were using the language of strict scrutiny.
Michelle and Shelby:
The almost universally accepted interpretation of Lee Optical is precisely that where the rational basis test applies, the legislature can make basically any distinction it wants under the rubric of going “one step at a time”, so long as there is some articulable reason for the distinction. (Remember, the law at issue in Lee Optical was pretextual and was actually enacted as a form of trade protectionism. Nonetheless, the Court upheld it because HYPOTHETICALLY it was the first step towards more comprehensive regulation.)
So yeah, it’s enough for Nelson to say there’s a big problem in Nebraska, we’re taking care of it now, and maybe we’ll get to the other states later. It’s a classic one step at a time argument and would basically dispose of any claim unless heightened scrutiny is applied.
A better question would be if Congress passed a law that Nebraska and only Nebraska was exempt from minimum-drinking-age-related restrictions on highway funding.
Like Section 5 of the Voting Rights Act, which exempts certain states and only certain states from preclearance requirements.
December 24, 2009, 2:25 amShelbyC says:
1. (Out of curiosity and not pretending that this is an arguement) Do you know of a case applying the reasoning to 5A due process?
2. It strikes me that subjecting some paties, but not others, to costs is distinguishable from subjecting some parties, but not others, to regulation. It’s way easier to allocate a financial burden equally.
3. IIRC in Silveria Reinhardt found no rational basis for a exemption from the AWB for retired cops, even though there was an articulable reason for the distinction, so I don’t know what other things come into play, or have developed since the 50′s, but I’ll defer to your knowelege there.
As far as I’m concerned, that goes without saying :-)
December 24, 2009, 8:51 amChris Travers says:
So in your view there is an articulable reason for starting with Nebraska independent of influence-peddling?
Also rational basis isn’t a blank check. I would expect the details of the compromise to work against it.
December 24, 2009, 12:31 pmChris Travers says:
The followup question is:
“We couldn’t pass this legislation without Senator X’s vote so we gave Nebraska a special provision.”
Is that a sufficient rational basis for the provision? I hope not.
December 24, 2009, 1:36 pmDilan Esper says:
So in your view there is an articulable reason for starting with Nebraska independent of influence-peddling?
I articulated it up thread. Nebraska can ill afford the increased medicaid burdens. I’m not saying it’s a valid or persuasiave purpose, but it’s definitely an articulable one.
Also rational basis isn’t a blank check.
Outside of a few select areas, it basically is one. (BTW, I do not think this is a wonderful state of affairs. But it is an accurate statement of current law.)
December 24, 2009, 2:53 pmmarcsulf says:
No, but the Constitution does explicitly state that taxation needs to be proportionate. See Article I, Section 8:
The fact that the Cornhusker Kickback exempts Nebraskans from taxes that citizens of the rest of the United States are required to pay is in clear violation of this text.
January 19, 2010, 4:41 pm