A Bug or a Feature?

Jonathan Cohn notes that the question of whether the ACA’s (Obamacare’s) Medicaid mandate is unduly coercive to the states is the “sleeper issue of the case: ” The Affordable Care Act expands Medicaid eligibility guidelines significantly, so that, starting in 2014, anybody with income below 133 percent of the poverty line can receive it. The result will be approximately 15 million more people with Medicaid coverage.”

Given that the U.S. Supreme Court has never defined precisely how far the federal government may go in “bribing” states before the bribes become an offer the states can’t refuse and thus unconstitutionally coercive, some of the Justices might find that this is a mechanism for overturning the ACA without having to revisit the Court’s Commerce Clause precedents.

Cohn reprints an email from University of Michigan law professor Sam Bagnsstos, in which he details the potential consequences of such a ruling:

If the Court holds that the ACA’s Medicaid expansion is unconstitutional, such a holding could put any number of cooperative state-federal programs at constitutional risk. The most obviously vulnerable would be Medicaid itself — even as it existed before the ACA’s amendments to it. If the petitioners are right that the large amount of federal money at stake coerces states into accepting new Medicaid conditions by leaving them with no realistic choice but to accept them, then it is hard to explain why the same large amount of federal money does not coerce states into continuing to accept the conditions that have long applied to Medicaid funding. The many federal statutes that impose conditions on federal aid to education would also be at severe constitutional risk, because those conditions are attached to large amounts of federal funding that states may feel they cannot realistically turn down. These statutes include Title I of the Elementary and Secondary Education Act — the most recent reauthorization of which was the No Child Left Behind Act — and Title IX of the Education Amendments of 1972.

Cohn (and Bagnestos) obviously think they are recounted a parade of horribles, but these sorts of programs are among the worst the federal government has to offer, not necessarily because of their substance but because they undermine political accountability.  The states get money from the federal government, with strings attached. Congress is happy, because it gets to spend more money, and state and local officials are happy because they can claim credit for spending the money without being accountable for raising it.  But local citizens who are unhappy with the relevant “strings” have no recourse to their local government, because the locals are just following orders from the feds.  It’s the worst of all worlds and a great example of a very dysfunctional version of federalism–Congressional overspending, centralized rules from agencies in Washington, D.C., and no accountability at the level where the money is spent and the rules implemented.  If the ACA challenge leads to a constitutional rethinking of (mostly) funded federal mandates, that strikes me as a feature, not a bug. (Note that there is nothing stopping any or all of the states from enacting their own, self-funded versions of Medicaid, NCLB, Title IX, etc., and that at least some federal mandates, even if coercive, are constitutionally valid under Congress “Section 5” power to enforce the Fourteenth Amendment.)

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